Gentile and Secretary, Department of Social Services (Social services second review)

[2020] AATA 4582

Gentile and Secretary, Department of Social Services (Social services second review) [2020] AATA 4582 (11 November 2020)

Division:GENERAL DIVISION

File Number:          2020/1578

Re:Angelo Gentile

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:The Hon. Matthew Groom, Senior Member

Date:11 November 2020

Place:Melbourne

The decision under review is affirmed.

...[sgd]....................................................................

The Hon. Matthew Groom, Senior Member

Catchwords

SOCIAL SECURITY – Disability Support Pension – calculation of start date of payment – not prevented from lodging claim form – decision affirmed.

Legislation

Social Security Act 1991

Social Security (Administration) Act 1999

Cases

Callaghan; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and [2010] AATA 506

Shayer v Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 304

Secondary Materials

Social Security (Administration) (Class of Persons-Intent to Claim) Determination 2018

Department of Social Services, Social Security Guide (version 1.273, 25 September 2020)

REASONS FOR DECISION

The Hon. Matthew Groom, Senior Member

11 November 2020

INTRODUCTION

1. This is a review of a decision of the Social Services & Child Support Division of this Tribunal (AAT1) made on 27 February 2020 affirming a decision of the Department of Social Services (the Department) to grant the Applicant a disability support pension (DSP) with a start date of 17 September 2018.

   BACKGROUND

2. The Applicant lodged a written claim for DSP with the Department on 17 September 2018 (2018 Claim).

3. The Applicant had previously lodged a claim for DSP in 2017 (2017 Claim) but that had been rejected.

4. On 20 December 2018 the 2018 Claim was approved with a start date of 17 September 2018, being the date on which the Applicant’s written application for his 2018 Claim was lodged (original decision).

5. The Applicant subsequently sought a review of the original decision and in particular whether the grant of DSP should have been backdated to May 2018.

6. On 21 January 2020 an authorised review officer (ARO) advised the Applicant that she had affirmed the original decision.

7. The Applicant then subsequently applied to the AAT1 for a review of the ARO’s decision and on 27 February 2020 the AAT1 affirmed the original decision.

8. On 10 March 2020 the Applicant applied for a review of the AAT1 decision which is the matter before this Tribunal.

   LAW

9. The legislation relevant to this matter is the Social Security Act 1991 and the Social Security (Administration) Act 1999 (the Act). In addition, the Social Security (Administration) (Class of Persons-Intent to Claim) Determination 2018 (the Determination) is also relevant. In considering this matter the Tribunal has also had regard to Guide to the Social Security Law.

10. Section 41 of the Act provides that a person’s start day in respect of a social security payment is to be determined in accordance with Schedule 2 to the Act.

11. Clause 3 of Schedule 2 to the Act provides that the general rule is that where a person is qualified for a social security payment on the date they make their claim, that date is the person’s start day in respect of the claim.

12. There are however a number of exceptions to the general rule set out in section 13 of the Act which apply in various circumstances where an applicant has contacted the Department prior to the date on which the claim was lodged.

13. Section 13(1) of the Act provides an exception where a person lodges a claim within 14 days after the Department was contacted.

14. Section 13(2) of the Act provides an exception where a person lodges a claim within 13 weeks after the Department was contacted. This exception applies in circumstances where the Secretary is satisfied that the person is suffering from a medical condition and that the medical condition, or circumstances related to that medical condition, had a significant adverse effect on the person’s ability to lodge the claim earlier.

15. Section 13(3) of the Act provides an exception where a person lodges a claim within 13 weeks after the Department was contacted. This exception applies in circumstances where the Secretary is satisfied that the person was caring for another person or was the partner of another person who was suffering a medical condition and that the medical condition, or circumstances related to the medical condition, had a significant adverse effect on the person’s ability to lodge the claim earlier.

16. Section 13(3A) of the Act provides an exception where a person lodges a claim within 13 weeks after the Department was contacted. This exception applies in circumstances where the Secretary satisfied that, in the special circumstances of the case, it was not reasonably practicable for the person to lodge a claim earlier.

17. In the case of each of the exceptions, where the conditions of the exception are made out, the claim for social security payment is backdated to the date on which the person contacted the Department.

18. In order to qualify for any of the exceptions set out in section 13 of the Act as described above, a person must fall within a relevant class of persons as set out in clause 5 of the Determination. Clause 5 provides that a person is in a class of persons for the purpose of sections 13(1), (2), (3) and (3A) of the Act if the person is unable to lodge a claim on the contact day because, at any time during the relevant period, person is:

    (a)subject to domestic or family violence;

    (b)homeless;

    (c)hospitalised or suffering from a temporary incapacity arising from a medical condition;

    (d)released from prison or psychiatric confinement;

    (e)experiencing high stress associated with a relationship separation;

    (f)a parent of a dependent child born during the relevant period;

    (g)affected by the death during the relevant period of an immediate family member;

    (h)a person who entered Australia during the relevant period as a humanitarian entrant to Australia;

    (i)a person whose usual place of residence is in a remote area, and the person is physically present in the remote area;

    (j)a person whose principal place of residence was lost during the relevant period as a result of an extreme circumstance, or

    (k)subject to other special circumstances beyond the person’s control.

19. For the purpose of the Determination:

    (a)a “contact day” means the day on which Department is contacted by or on behalf of a person in relation to a claim for a social security payment or concession card; and

    (b)the “relevant period” means the period of eight weeks ending on the contact day.

    ISSUE

20. The issue before the Tribunal is whether any of the exceptions set out in section 13 of the Act apply such that the Applicant’s grant of DSP should be backdated to an earlier date.

    CONSIDERATION

21. The Applicant has made a number of assertions in support of his claim that his grant of DSP should be backdated to a date prior to September 2018. In particular, the Applicant asserts that when he contacted the Department on 9 July 2018 a Department officer had offered to complete an application form for DSP on his behalf. He also asserts that he had previously completed an application form for DSP in around April or May 2018 with the assistance of another officer of the Department. The Applicant asserts that on the basis of representations made by Departmental officers on each of these occasions his application should be treated as having been made at these earlier times and that his grant for DSP should be backdated accordingly.

22. The Respondent concedes that the Applicant made contact with the Department in respect of his 2018 DSP claim on 9 July 2018, 14 July 2018, 13 August 2018 and 31 August 2018 but maintains that the Applicant did not make a claim for DSP following his 2017 Claim prior to 17 September 2018. The Respondent acknowledges that the Applicant had made an earlier 2017 Claim for DSP but that had been rejected. The Respondent does not concede that any representations were made by Departmental officers that a claim would be completed on the Applicant’s behalf and further that such a scenario would be extremely unusual and that there is no record of it occurring. The Respondent asserts that based on all of the circumstances of the case there is no exception in the Act that would apply to enable the Applicant’s grant of DSP to be back dated as sought by the Applicant.

23. The Tribunal is satisfied that the date on which the Applicant lodged his application for his 2018 Claim for DSP was 17 September 2018. The Applicant clearly made an earlier application for his 2017 Claim for DSP but that application was rejected and is not a matter before this Tribunal. The Tribunal also accepts that the Applicant contacted the Department prior to September 2018 as conceded by the Respondent but also accepts that Respondent’s contention that the Applicant had not made any other claim for DSP following his 2017 Claim and prior to 17 September 2018.

24. The Applicant asserts that on two separate occasions, the first sometime around April or May 2018 and then again on 9 July 2018, a representation had been made by an officer of the Department that an application will be completed by them on his behalf. The Applicant told the Tribunal that on each occasion he had understood that as a consequence of those representations a claim for DSP had in fact been made by him.

25. The Tribunal found the Applicant’s evidence in relation to these asserted earlier interactions with the Department to be vague and inconsistent. In drawing this conclusion the Tribunal does not wish to impugn in any way the honesty or integrity of the Applicant. The Applicant has had a significant number of interactions with the Department over the years, not just with respect to DSP but also in relation to his Newstart allowance. In addition, the Applicant was suffering from depression and anxiety during this period. It is entirely understandable that in those circumstances the Applicant has become somewhat confused about the precise nature and timing of his interaction with the Department. This is further supported by the fact that there was other evidence the Applicant presented to the Tribunal at the hearing which he himself conceded was confused and not accurate. The Applicant had asserted that he had attended the offices of Centrelink sometime in around March 2018 along with a support person, Mr Wayne Gleeson, and had undergone an assessment by a registered psychologist at Centrelink’s request. The Respondent maintained that no such engagement had occurred and that in fact the Applicant had met with a registered psychologist at Centrelink’s request towards the end of 2018 and after the 17 September lodgement date. The Tribunal agreed to call Mr Gleeson at short notice to hear his evidence on the point. Mr Gleeson confirmed that the Respondent’s position on this issue was correct. Having heard Mr Gleeson’s evidence the Applicant conceded he had been wrong and told the Tribunal that his memory was not very good.

26. The Tribunal is also not satisfied, based on the evidence before it, that on either of the occasions identified by the Applicant a Departmental officer did in fact represent that a claim would be submitted on the Applicant’s behalf nor that the Applicant did in fact complete a claim for DSP on either of those occasions. However, in any case, the Tribunal is satisfied that, based on the evidence before it, the only claim for DSP actually lodged by the Applicant with the Department following the rejection of his 2017 Claim that accords with the requirements of the Act was the claim lodged on 17 September 2018. Further, in any case the 17 September 2018 claim is the claim that was ultimately accepted by the Department and is the subject of the matter before this Tribunal.

27. Further, having considered all of the materials before it, as well as the direct evidence of the Applicant provided at the hearing, the Tribunal is not satisfied that the Applicant was unable to lodge a claim on any of the earlier days on which he contacted the Department due to any of the circumstances set out in clause 5 of the Determination. In particular, the Tribunal is not satisfied that the Applicant was homeless during the relevant period nor suffering from a temporary incapacity as a consequence of a medical condition that caused him to be unable to lodge a claim on any of the earlier days on which he contacted the Department. In reaching this conclusion the Tribunal accepts that the Applicant was suffering from depression and anxiety as well as the other conditions that gave raise to his DSP at all relevant times. However, on the Applicant’s own evidence his conditions were stable during 2018 and there is no substantive evidence that the Applicant’s medical conditions impeded the Applicant from completing his claim for DSP on any of the earlier occasions he contacted the Department or in the period between those contact days and the date of his subsequent claim. This is again further supported by the Applicant’s own evidence where he conceded that he had had a number of interactions with the Department over both his DSP and also his Newstart allowance and that he had not had any difficulty engaging with the Department on any of those occasions. The Applicant also conceded that he completed his application form in September 2018 himself without any difficulty.

28. For these reasons, the Tribunal is satisfied that none of the exceptions in section 13 of the Act apply to enable the Applicant’s grant of DSP to be backdated to a date that is earlier than the date of his claim.

29. However, even if the Tribunal had come to a different conclusion and found that the Applicant did in fact satisfy the requirements of clause 5 of the Determination, the Tribunal is also not satisfied that the other conditions necessary to enliven any of the exceptions in section 13 of the Act are made out. More specifically, the exception in section 13(1) cannot be satisfied as the Applicant’s subsequent application form was not lodged within 14 days of any of his earlier contacts with the Department.

30. The Tribunal is also not satisfied based on the evidence before it that the medical conditions the Applicant was suffering from at the relevant time had a significant adverse impact on his capacity to lodge his claim DSP at an earlier time. Nor is the Tribunal satisfied based on the evidence before it that there are special circumstances present in this case that rendered it reasonably impracticable for the Applicant to have lodge his claim DSP at an earlier time. There is no substantive evidence before the Tribunal to support an assertion to the contrary. In addition, as referred to earlier, the Applicant’s own evidence was that his medical conditions were stable during 2018 and that he had not had difficulty in contacting the Department or in completing forms required.

31. More specifically, in reaching its conclusion in respect of section 13(3A) of the Act the Tribunal has been mindful that even where special circumstances are made out there must still have been a practical impediment to the lodging of the claim.[1] There is simply no compelling evidence to that effect.

    [1] See comments in Callaghan; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and [2010] AATA 506 at [31]–[32] and also Shayer v Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 304 at [15].

32. For these reasons, the Tribunal is satisfied that none of the exceptions in section 13 of the Act apply to the circumstances of the Applicant’s case and therefore the general rule should apply with respect to the start date of his claim for DSP. Accordingly, the date on which the Applicant’s grant of DSP should have commenced is 17 September 2018.

    DECISION

33. The decision under review is affirmed.

I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member

.....[sgd]...................................................................

Associate

Dated: 11 November 2020

Date of hearing:	27 October 2020
Applicant:	By telephone
Advocate for the Respondent:	Mr Sparkes
Solicitors for the Respondent:	Services Australia