Foster; Secretary, Department of Employment and Workplace Relations

[2006] AATA 620

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 620

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/295

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And IAN FOSTER

Respondent

DECISION

Tribunal Ms N Bell, Senior Member 

Date12 July 2006 

PlaceSydney

Decision The decision under review is set aside and instead the Tribunal decides that Mr Foster’s disability support pension should be paid from 6 October 2004

..............................................

Ms N Bell
  Senior Member 

SOCIAL SECURITY – Psychiatric Condition – Spinal Injury – Disability Support Pension – New Start Allowance – Correct Payment Start Date – Continuation Form Not Claim for Pension – Decision Under Review Set Aside

Social Security (Administration) Act 1999 (Cth)

Secretary, Department of Social Security v Cooper (1990) 26 FDR 13

REASONS FOR DECISION

12 July 2006 Ms N Bell, Senior Member

1.      Mr Foster suffers from a psychiatric condition and a condition affecting his back.  He was in receipt of newstart allowance from 1999, claimed disability support pension in 2003, but was refused, and claimed that pension again on 6 October 2004.  On that occasion it was granted from the date of claim.  Mr Foster, who represented himself in these proceedings, considers that he should be paid disability support pension from May 2003 instead. On that basis he applied to the Social Security Appeals Tribunal (the SSAT) and there it was decided he should be paid an allowance from 20 November 2003, one of the dates when he lodged a newstart allowance continuation form.  The Secretary applied to this Tribunal contending Mr Foster should be paid from 6 October 2004.

2. The start date of a pension is generally the date a claim for that pension is made (ss 41, 42 and clause 3 of Schedule 2 of the Social Security (Administration) Act 1999) (the Act).  Section 15(4A) of the Act provides for a departure from this general scheme. In certain circumstances an earlier claim for one payment can be treated as a claim for a different, but more appropriate, payment.  To this end the more appropriate payment (being the later one) can then be given the start date of that earlier claim.  The SSAT applied that provision to Mr Foster’s circumstances and decided that his disability support pension should be paid from 20 November 2003.  The SSAT considered that the newstart allowance continuation form amounted to a claim within the meaning of s15(4A).  Ms Schuster, on the Secretary’s behalf, considers that approach to be incorrect.

3.      There is a further complicating matter.  When any payment is made because of a favourable decision resulting from a review by an authorised review officer, the SSAT or this Tribunal, certain other provisions of the Act determine the date from which such a favourable decision may have effect, depending on the date on which the review was sought.  In particular, s152(4) of the Act provides that if a person applies to the SSAT for review of a decision more than 13 weeks after the person receives notice of that decision then any new decision on review will only have effect from the date the application is made to the SSAT.  Similar provisions apply in relation to applications for review by authorised review officers (s109 of the Act) and by this Tribunal.  These provisions determine whether arrears may be paid.

4.      Therefore, the issues for me to consider are:

·     Whether any departure should be made from the general rule that Mr Foster’s disability support pension should be paid from the date he successfully claimed that pension; and

·     If so, whether any arrears should be paid to Mr Foster.  The payment of arrears is only possible if Mr Foster lodged his various requests for review within the periods required by ss109 and 152 of the Act.

when did mr foster lodge his requests for review?

5.      Mr Foster claimed disability support pension in December 2003, mentioning only his back condition, and Centrelink rejected his claim because it considered his back condition was not treated and stabilised.  He did not seek review of this decision by the Social Security Appeals Tribunal (SSAT).  After he was referred by Centrelink for assessment by Health Services Australia in September 2004, Mr Foster was invited by Centrelink to lodge a new claim for disability support pension.  He lodged a claim on 6 October 2004 and Centrelink decided to pay him the pension from that date.   Mr Foster did not seek a review of this decision until 25 May 2005 – more than 13 weeks after notice of the decision was sent to him (s109 of the Act). On 17 August, an authorised review officer reviewed and affirmed the decision not to make payment in arrears.  Mr Foster then sought review of the decision by the SSAT – but not until 13 December 2005, considerably more than 13 weeks after notice of the authorised review officer’s decision was given to him (s152 of the Act).

6.      Because of the limitations on payments of arrears imposed by ss109 and 152 of the Act and the delay in his requests for review, even if I considered that Mr Foster should be paid disability support pension from a date earlier than the date of his successful claim, he could not be paid arrears.

7.      For practical purposes, it is not necessary for me to consider whether Mr Foster’s newstart allowance continuation form should be treated as an earlier claim for disability support pension under s15(4A).  However, for completeness, I agree with the submission made by Ms Schuster to the effect that a newstart allowance continuation form should not, in these circumstances, be treated as a claim for a payment for the purposes of s15(4A) of the Act.  I also agree that the decision of the Full Federal Court in Secretary, Department of Social Security v Cooper (1990) 26 FCR 13, in which a review form for a handicapped child’s allowance was treated as a claim for an invalid pension, is distinguishable. In particular, the Full Federal Court was mindful of the fact that the applicant in that case was, at the relevant time, about to become ineligible for the handicapped child’s allowance because she was about to turn 16 and it was the policy of the Secretary at that time to give advance notice to each recipient that an entitlement to invalid pension might arise. That advice was not given and a further review form was issued instead. There was also evidence that the completed review form was treated by the Secretary as an application for a renewed benefit – necessary because of the applicant turning 16. Therefore, the review form which was the subject of Cooper had a particular significance that cannot be attached to the fortnightly continuation form (one of many) lodged by Mr Foster in this case.  The form in Cooper was, because of the surrounding circumstances, in the nature of a claim.  The fortnightly continuation form, in Mr Foster’s case, was not.

8.      I wish to address a number of matters raised by Mr Foster and to acknowledge some of the difficulties experienced by him.

matters of concern to mr foster

9.      It became apparent in the course of the hearing that, after attending what Mr Foster describes as a 2 year “psychologist program” administered by Chatswood Area Health Service (now defunct), Mr Foster attended a TAFE course which he ultimately left after becoming upset (transcript p17).  Centrelink wrote to him on 26 February 2002 inviting him to apply for disability support pension and enclosing a claim form.  Mr Foster said he rejected this invitation saying he considered himself to be young and he wanted to keep working.  He said Centrelink then sent him to the Commonwealth Rehabilitation Service.  A letter from that service to Mr Foster dated 14 May 2003 advised him that it would not offer him a rehabilitation program because it considered that his medical condition is not stable enough for him to consider working in the near future.  It is at this point that Mr Foster considered that he should be paid disability support pension.  Instead, he said, “Centrelink continued straight out sending me to labouring work” (transcript p17) notwithstanding the Commonwealth Rehabilitation Service’s opinion.  Mr Foster’s frustration with this inconsistency is logical and understandable.

10.     However, what was required of Mr Foster, at that point, was for him to make a claim for disability support pension.  He did not do that until December 2003 and the only medical condition noted by his treating doctor on the report accompanying his claim was his back condition.  That condition alone was not considered sufficient to qualify him for the pension and he did not challenge that conclusion after it was affirmed by an authorised review officer.  There was no mention in his December 2003 claim of his psychiatric condition and it seems his claim was not cross referenced with Centrelink’s letter to him in February 2002 inviting him to claim disability support pension.   It is not clear, in any event, that the February 2002 invitation was based on an awareness of Mr Foster’s psychiatric condition.

11.     It is understandable that Mr Foster expected Centrelink to take all of his conditions into account at all times but it is also understandable that it did not, given the large number of service providers involved in his welfare including the Chatswood Area Health Service, the Commonwealth Rehabilitation Service, Centrelink and Health Services Australia.  The difficulty for Mr Foster arises from the administrator’s need for certainty and clarity and Mr Foster’s need for assistance in navigating a complex administrative system in the context of a psychiatric and physical condition.

decision

12.     The decision under review is set aside and instead the Tribunal decides that Mr Foster’s disability support pension should be paid from 6 October 2004.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed  
  [Sanjiv Shah]

Date of Hearing  9 May 2006
Date of Decision  12 July 2006
Solicitor for the Applicant          Centrelink Legal Services