Fyfe and Secretary, Department of Education, Employment and Workplace Relations
[2009] AATA 588
•7 August 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 588
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3807
GENERAL ADMINISTRATIVE DIVISION ) Re Roger Fyfe Applicant
And
Secretary, Department of Education, Employment and Workplace Relations
Respondent
DECISION
Tribunal Dr T Schafer, Member Date7 August 2009
PlaceSydney
Decision The Tribunal decides that the decision of the SSAT should be set aside, and the decision of the Authorised Review Officer reinstated, that is, the correct start date in relation to the payment of Mr Fyfe’s PES is 13 November 2007.
...............[sgd]...............................
Dr T Schafer
Member
CATCHWORDS
SOCIAL SECURITY – Pension Education Supplement – Disability Support Pension – backdated payment – definition of “social security” payment – when Applicant qualified for payment of PES – date of claim for payment – medical condition
Relevant Act
Social Security Act 1991 – section 23
Social Security (Administration) Act 1999 – sections 11(1) and 13, Schedule 2 clauses 11(2), 30, 31 and 32
REASONS FOR DECISION
7 August 2009 Dr T Schafer, Member Background
1. Mr Fyfe suffers from severe uncontrollable epilepsy. His medical condition affects his cognitive ability and capacity to make decisions.
2. In July 2006, Mr Fyfe enrolled in a Music Industry Production Course at TAFE. At that time, he was told that he was not eligible for a Pension Education Supplement (PES) because he was not receiving a pension. An application for a pension had previously been rejected and was the subject of an appeal.
3. On 4 September 2006, the Social Security Appeals Tribunal (the SSAT) decided that Mr Fyfe met all of the qualifications to be granted a disability support pension (DSP).
4. The Secretary, Department of Employment and Workplace Relations
(the Secretary) subsequently submitted an appeal to this Tribunal for a review of this decision. However, the Tribunal wrote to Mr Fyfe on 26 June 2007 indicating that the Secretary had withdrawn its appeal regarding Mr Fyfe’s DSP.5. On 11 July 2007, Centrelink wrote to Mr Fyfe to advise that the SSAT decision had been implemented and arrears of DSP totalling $4641.17 for the period 2 December 2004 to 7 November 2006 had been issued to his bank account.
6. On 13 November 2007, Mr Fyfe contacted Centrelink in relation to claiming PES.
7. On 7 December 2007, Mr Fyfe lodged an application for PES.
8. On 27 December 2007, Centrelink decided to grant Mr Fyfe's PES payments from 13 November 2007.
9. On 4 February 2008, the Authorised Review Officer (the ARO) affirmed the decision.
10. On 2 July 2008, the SSAT varied the start date of payment of Mr Fyfe's PES from 13 November 2007 to 6 November 2007.
11. On 13 August 2008, Mr Fyfe appealed that decision to this Tribunal.
Issue
12. The issue for the Tribunal to determine is the date upon which Mr Fyfe first qualified for the payment of PES and, therefore, whether his PES can be backdated.
Legislation
13. Pursuant to section 23 of the Social Security Act 1991, PES is a "social security payment”.
14. Section 11(1) of the Social Security (Administration) Act 1999 (the Act) provides:
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.
15. Section 13 of the Act provides the following general rules governing the start date for the payment of social security payments:
(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.
(3A) 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 more than 14 days, but not more than 13 weeks, after the Department is contacted; and
(e) the Secretary is satisfied that, in the special circumstances of the case, it was not reasonably practicable for the person 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.
(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.
16. Part 2 of Schedule 2 provides general rules for determining a person's start day. Specifically, clause 3(1) provides:
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.
17. Part 3 of Schedule 2 of the Act provides that in some circumstances, a person's start day may be earlier than the day determined in accordance with Part 2 of Schedule 2. In particular, clause 11(2) relates to incapacitated claimants and provides:
If:
(a) a person becomes incapacitated for work as a result of a medical condition; and
(b) the person makes a claim for a benefit or pension more than 5 weeks after the day on which the incapacity begins; and
(c) the Secretary is satisfied that:(i) the person has continued to suffer the medical condition from the day on which the incapacity began until the claim was made; and
(ii) the medical condition was the sole or principal cause of the person's failure to make the claim within 5 weeks after the day on which the incapacity began;
the person's start day in relation to the pension or benefit is the first day on which the person was qualified for the benefit or pension in the period of 4 weeks ending immediately before the date on which the claim was made.
18. For the purposes of clause 11(2), “social security benefit” and social security pension” are defined in section 23 of the Social Security Act:
"social security benefit" means:
(aa) widow allowance; or
(aab) youth allowance; or
(aac) austudy payment; or
(a) newstart allowance; or
(c) sickness allowance; or
(d) special benefit; or
(e) partner allowance; or
(ea) a mature age allowance under Part 2.12B; or
(f) benefit PP (partnered); or
(g) parenting allowance (other than non‑benefit allowance).
"social security pension" means:
(a) an age pension; or
(b) a disability support pension; or
(c) a wife pension; or
(d) a carer payment; or
(e) a pension PP (single); or
(ea) a sole parent pension; or
(f) a bereavement allowance; or
(g) a widow B pension; or
(ga) disability wage supplement; or
(i) a mature age partner allowance; or
(k) a special needs pension.
19. Clauses 30 to 32 of Part 3 of Schedule 2 provide limited rules to allowing a backdated start day for PES.
30 Pensioner education supplement
If:
(a) a person makes a claim for a pensioner education supplement; and
(b) when the claim is made, the person is qualified for the supplement; and
(c) the claim is made within 4 weeks after the person became qualified for the supplement;
the person's start day in relation to the pensioner education supplement is the day on which the person became qualified for the supplement.
31 Pensioner education supplement: claim before 1 April
If:
(a) a person makes a claim for a pensioner education supplement after the beginning of a calendar year but before 1 April in that year; and
(b) the person's course of education is a full year course that begins before 1 April in that year;
the person's start day in relation to the pensioner education supplement is the first day on which the person is qualified for pensioner education supplement on or after 1 January in that year.
32 Pensioner education supplement: claim before 1 August
If:
(a) a person makes a claim for a pensioner education supplement after the beginning of a calendar year but before 1 August in that year; and
(b) the person's course of education is a full year course that starts in the month of July in that year;
the person's start day in relation to the pensioner education supplement is the first day on which the person is qualified for pensioner education supplement on or after 1 July in that year.
Consideration of Evidence
20. Mr Fyfe first submitted a claim for DSP on 2 December 2004. That claim was rejected on 11 February 2005.
21. An ARO affirmed the decision to reject Mr Fyfe’s claim on 19 April 2006.
22. On 21 July 2006, Mr Fyfe lodged an appeal with the SSAT.
23. Also in July 2006, Mr Fyfe first enrolled in a course at TAFE.
24. In a letter dated 20 November 2007, Ms Sue Johnston, who was at the time a Head Teacher/Consultant at TAFE, stated that she had discussed the possibility of Mr Fyfe applying for the PES at the time of his enrolment. She also stated, in another letter dated 30 June 2008, that she told Mr Fyfe at the time of his enrolment that he was ineligible for PES because he was not in receipt of the DSP.
25. On 4 September 2006, the SSAT decided that Mr Fyfe did, in fact, qualify for the grant of a DSP and had done so since the date of his claim. However, the Secretary appealed the decision of the SSAT to this Tribunal.
26. Pending the outcome of the appeal, Mr Fyfe started receiving DSP pursuant to an AAT stay order dated 7 November 2006.
27. The Tribunal wrote to Mr Fyfe on 26 June 2007 indicating that the Secretary had withdrawn its appeal regarding Mr Fyfe’s DSP. Subsequently, on 11 July 2007, Centrelink wrote to Mr Fyfe to advise that the SSAT decision had been implemented and arrears of DSP totalling $4641.17 for the period 2 December 2004 to 7 November 2006 had been issued to his bank account.
28. Thus, Mr Fyfe was advised in July 2007 that he had qualified for the DSP from 2 December 2004.
29. However, Mr Fyfe did not contact Centrelink regarding his eligibility for PES until 13 November 2007, and subsequently lodged a claim for PES on 7 December 2007. This was more than four months after the Tribunal wrote to him and confirmed that he had been entitled to DSP since he first submitted his claim in December 2004.
30. I note the evidence of Ms Sue Johnston that she told Mr Fyfe at the time of his enrolment that he was ineligible for PES because he was not in receipt of DSP. However, there are no contemporaneous records indicating that she so advised Mr Fyfe and the Tribunal is, therefore, reliant on letters written by Ms Johnston on 20 November 2007, after Mr Fyfe contacted Centrelink about his eligibility for PES, and 30 June 2008. There is also a letter from Ms Johnston dated 6 November 2006, but it only refers to the DSP, not the PES.
31. I note that the decision of the SSAT dated 14 July 2008 states that the SSAT asked Mr Fyfe why he didn’t apply for the PES in July 2007, when his DSP was confirmed. Mr Fyfe said in reply that “he has cognitive problems and [that] he simply forgot to apply for PES. Also, he decided to defer future dealings with Centrelink until the end of term at TAFE, because he didn’t want his dealings with Centrelink to have an adverse effect on his studies.”
32. In the Tribunal’s view, the evidence that Mr Fyfe “simply forgot to apply for PES” and “decided to defer dealings with Centrelink until the end of term at TAFE, because he didn’t want his dealings with Centrelink to have an adverse effect on his studies” cannot be considered as reasons why the Tribunal should backdate Mr Fyfe’s PES. Further, I am surprised that none of Mr Fyfe’s advisors, including Ms Johnston, would have made him aware that he could apply for the PES once his DSP was granted or would have offered him the assistance he needed to promptly lodge an application after his DSP was granted.
33. On the basis of the above, there is no evidence before me that convinces me that Mr Fyfe’s PES should be backdated.
34. Accordingly, pursuant to section 11(1) of the Act, Mr Fyfe lodged a claim for PES on 7 December 2007.
35. Ordinarily, therefore, according to clause 3(1) of Part 2 of Schedule 2 of the Act, Mr Fyfe’s start day in relation to payment of his PES would have been on the day on which the claim was made, that is 7 December 2007.
36.However, pursuant to section 13(2) of the Act:
- because Mr Fyfe lodged his claim more than 14 days but not more than 13 weeks after he contacted the Department; and
- because I am satisfied that between the date that Mr Fyfe first contacted the Department and the date that he lodged his claim, he was suffering from a medical condition;
I am prepared to accept the claim to have been taken to be made on the day on which Mr Fyfe contacted the Department. I am prepared to do this despite my reservations about whether Mr Fyfe’s medical condition, or circumstances related to that condition, had a significant adverse effect on his ability to lodge the claim earlier.
37. It is noted that the SSAT applied clause 11(2) of Schedule 2 and determined that Mr Fyfe's claim for PES could be backdated four weeks. However, clause 11(2) specifically relates to "a claim for a benefit or pension". In its Statement of Facts and Contentions, the Secretary contended that “on its proper construction, this clause should not apply to Mr Fyfe's claim. This is because PES is neither a ‘social security benefit’ nor a ‘social security pension’ (see clause 1 of Schedule 2, and section 23 of the Social Security Act 1991).”
38. The Tribunal notes that Division 2 of Part 3 of Schedule 2 of the Act pertains to “Rules applying to all or most social security payments”. Whilst PES is a social security payment, it does not meet the definition of a “social security benefit” or a “social security pension” as set out in section 23 of the Act. Clause 11(2) does not, therefore, apply in Mr Fyfe’s case and there was no facility for the SSAT to backdate payment by four weeks.
39. The Tribunal has also considered the operation of clauses 30 to 32 of Part 3 of Schedule 2 of the Act, which provides for PES to be backdated in certain circumstances. The Tribunal has determined that clauses 30 to 32 do not apply in relation to the payment of Mr Fyfe’s PES. Clause 30 does not apply because Mr Fyfe did not lodge his claim within 4 weeks of the day he qualified for PES. Clause 31 does not apply because Mr Fyfe’s DSP was granted in July 2007 and that clause relates to persons qualifying for PES at the beginning of the calendar year. Clause 32 does not apply because Mr Fyfe did not lodge his claim before 1 August 2007.
Decision
40. On the basis of the above, the Tribunal decides that the decision of the SSAT should be set aside, and the decision of the ARO reinstated, that is, the correct start date in relation to the payment of Mr Fyfe’s PES is 13 November 2007.
I certify that the forty (40) preceding paragraphs are a true copy of the reasons for the decision herein of Dr T Schafer, Member.
Signed: ........................[sgd]...................................................
AssociateDate/s of Hearing 13 May 2009
Date of Decision 7 August 2009
Appearance for the Applicant Stephen Kerr, City & Inner West Disability Advocacy
Appearance for the Respondent James Larcombe, Centrelink Legal Services
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