Florenca and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 853

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 853

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0936

GENERAL ADMINISTRATIVE DIVISION		)
Re		Paul Florenca

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr A Frazer,  Member

Date29 November 2011

PlacePerth

Decision The Tribunal affirms the decision under review.

…(sgd) Dr A Frazer…
   Member

CATCHWORDS

SOCIAL SECURITY – qualification requirements – date of payment - decision under review affirmed

LEGISLATION 

Social Security Act 1991 (“the Act”),

Social Security (Administration) Act 1999 (“the Administration Act”).

REASONS FOR DECISION

29 November 2011                Dr A Frazer,  Member

Introduction

1.      Mr Paul Florenca, (“the applicant”), who is 47 years old, has been in receipt of disability support pension (“DSP”) from 6 August 1999 to 27 January 2006.

2.      On 16 December 2005 Centrelink informed the applicant his DSP had been cancelled and the last payment would be 27 January 2006.

3.      This decision was affirmed by a Centrelink authorised review officer (“ARO”) who notified the applicant on 18 May 2006.

4.      On 12 August 2008 the applicant lodged a new claim for DSP and Centrelink notified the applicant the claim was rejected on 12 August 2008.

5.      On 11 November 2009 the applicant lodged another claim for DSP which was rejected however on 27 May 2010 an ARO decided the applicant should be paid DSP from 11 November 2009.

6.      On 22 September 2010 the applicant applied to the SSAT for a review of Centrelink’s decision of 12 August 2008.  The SSAT referred the matter back to Centrelink for a specific ARO review of that decision. On 13 January 2011 an ARO considered the earliest date from which the applicant could be paid DSP and decided the applicant could not be paid from a date earlier than 11 November 2009.

7.      On 23 February 2011 the SSAT affirmed the decision under review.

8.      On 16 March 2011 the applicant applied to this Tribunal for a review of the  SSAT’s decision that the applicant should be paid DSP from 11 November 2009 and not from an earlier date.

The Relevant Legislation

9. Section 129 Administration Act provides that a person affected by a decision of an officer made under social security law may apply to the Secretary (Centrelink) for a review of that decision.

10. Section 109 Administration Act sets out the date of effect of a favourable determination resulting from an application of review of an original decision made in relation to social security payment.

11.     Subsection 109(1) provides that, if a notice is given to the person informing the person of the original decision, and the person applies for a review of that decision within 13 weeks after the notice is given, then, if a favourable decision is made as a result of the application, it takes effect on the day on which the original decision took effect.

12.     Subsection 109(2) provides that, if notice is given to the person of the original decision, and the person applies for a review of that decision more than 13 weeks after the notice is given, then, if a favourable decision is made as a result of the application, it takes effect on the day the application for review was made.

13.     Subsection 109(3) provides that if the person is not given notice of the original decision, and the person applies for a review of that decision, then, if a favourable decision is made, it takes effect on the day on which the original decision took effect.

14. Subsection 11(1) Administration Act provides that a person who wants to be granted a social security payment must make a claim. Subsection 16(1) Administration Act provides that a person makes a claim by lodging a written claim.

15. Section 13 Administration Act provides that under certain circumstances a person who contacts Centrelink about a claim for a social security payment may be deemed to have made a claim on the day the person contacted Centrelink about making the claim.

16. Section 42 Administration Act provides that the start date of a person’s social security payment is the day worked out in accordance with Schedule 2 to the Administration Act. Subclause 3 (1) of Schedule 2 provides that if a person makes a claim for a social security payment and the person is qualified for the payment on the day on which the claim is made, then the person’s start day is the day on which the claim is made.

The Evidence

17.The evidence before the Tribunal comprised:

·the “T Documents” (T1-T18), pp 1- 164, and ST19 –ST22 lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the respondent”);

·Exhibit A1 referral letter from Dr Luke Ashford, GP, dated 29 July to Dr Ros White, Psychiatrist, tendered by the applicant

·Exhibit A2  bundle of past prescriptions for medications tendered by the applicant 

The applicant’s evidence

18.     The applicant told the Tribunal that he felt Centrelink “had not worked with him” right from 2006.  The applicant said he had “problems organising things” and that he needed more help.  He said the main thing was that “he was annoyed to be off (the DSP)” from January 2006 to December 2009.

19.     The applicant said that his DSP should not have been cancelled in the first place because of his physical disabilities and also his diagnosed ADHD (Attention Deficit Hyperactivity Disorder).

Analysis

20.     The Tribunal considered the evidence provided by the applicant and the written documentation provided by Centrelink.  The Tribunal accepts that on 16 December 2005 Centrelink notified the applicant that his DSP would be cancelled from 27 January 2006.  This decision was affirmed by an ARO on 18 May 2006.  The applicant was notified of the decision and informed he could request a review by the SSAT by letter dated 18 May 2006.  There is no evidence that the applicant made this request.

21.     The Tribunal accepts that the applicant lodged a new claim for DSP on 12 August 2008 and, on the same day, his claim was rejected.  By letter dated 12 August 2008 the applicant was notified of the decision and informed that he could apply for a review of the decision by an ARO. There is no evidence the applicant made this request.

22.     On 11 November 2009 the applicant lodged a new claim for DSP and on 22 February this claim was rejected.  On 27 May 2010 an ARO decided the applicant was qualified for DSP from 11 November 2009.  On 13 January 2011 an ARO decided the applicant could not be back paid from an earlier date.

23. The effect of s109 of the Administration Act in these circumstances is that the DSP is payable to the applicant from 11 November 2009 and not from an earlier date.

Decision

24.For the above reasons the Tribunal affirms the decision under review.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Dr A Frazer, Member

Signed:…(sgd) T Freeman………...
  Associate

Date of Hearing  11 August 2011
Date of Decision  29 November 2011
Representative of the Applicant         Self-represented

Representative for the Respondent          Mr P Maishman

Centrelink