Georgopoulos and Secretary, Department of Employment and Workplace Relations

[2007] AATA 2053

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2053

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           2007/0593

GENERAL ADMINISTRATIVE DIVISION		)
Re		BILL GEORGOPOULOS

Applicant

And SECRETARY DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date14 December 2007

PlaceSydney

Decision The decision under review is affirmed.

……………[sgd]……………….

Ms N Isenberg, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether disability support pension can be backdated - date of actual lodgement of claim form – earlier date on which application is deemed to be lodged – criteria not met – no discretion – decision under review is affirmed. 

Administrative Appeals Tribunal Act 1975, section 37

Social Security (Administration) Act 1999, Part 3, Division 1; sections 13, 16, Schedule 2

REASONS FOR DECISION

14 December 2007 Ms N Isenberg, Senior Member

DECISION UNDER REVIEW

1.      The decision under review is a decision of the Social Security Appeals Tribunal (‘SSAT’), dated 13 February 2007, which affirmed the decision of an Authorised Review Officer (‘ARO’), dated 16 November 2006, to not grant Mr Georgopoulos Disability Support Pension (‘DSP’) from a date earlier than 10 October 2006.

ISSUE BEFORE THE TRIBUNAL

2.The issues before the Tribunal are:

§  Is Mr Georgopoulos entitled to payment of DSP prior to 10 October 2006?

BACKGOUND

3.      Mr Georgopoulos was injured in a motor vehicle accident (‘MVA’) in December 2004.  He was paid workers compensation, and there was a motor vehicle accident claim as well.

4.      Mr Georgopoulos’ solicitor asked Centrelink for a compensation charge estimate on 12 July 2006 and 20 November 2006. As a result Centrelink sent preliminary notices to the insurers on 13 July 2006.  The MVA claim settled on 11 December 2006.  Centrelink calculated a lump sum preclusion period running from 9 July 2005 to 2 December 2005.  As Mr Georgopoulos had not received Centrelink benefits during that period there was no Centrelink charge.

5.      Centrelink’s first record of contact by Mr Georgopoulos was on 10 October 2006.  It was recorded that Mr Georgopoulos phoned Centrelink indicating an intention to claim social security payments.  This was acknowledged by Centrelink in a letter of the same date.

6.      Centrelink’s records note that Mr Georgopoulos also phoned on 13 October 2006 (when claim forms were sent to him), 18 October 2006 (when a Newstart claim interview was scheduled for 24 October 2006) and 19 October 2006 (when information products were issued).

7.      Mr Georgopoulos lodged his claim for Centrelink benefits on 23 October 2006.  On 14 November 2006 he was advised that DSP had been granted from 23 October 2006.

8.      On 13 December 2006, Mr Georgopoulos phoned Centrelink to express dissatisfaction with the date of grant of his DSP.  As a result the decision in relation to the start date for DSP of 23 October 2006 was varied on review so as to substitute a start date of 10 October 2006 in view of the contact made by him on that date.  That decision was affirmed by the SSAT.

LEGISLATION

9. The dispute concerns the date on which the claim for Mr Georgopoulos’ Disability Support Pension was made. The relevant legislation is sections 13, 16 and Schedule 2 of the Social Security (Administration) Act 1999 (‘the Act’).

10. To be granted DSP a claim must be made in accordance with Part 3, Division 1 of the Act. The only way of making a claim is to lodge a written claim (section 16(1) & (2)).  Lodging a written claim is done by an approved form being delivered to a person and place approved by the Secretary for the purpose of lodgement (section 16(4)). 

11. A person’s start day in relation to a social security payment is the day worked out in accordance with Schedule 2 of the Act. Generally the start date for payment is the day on which the claim is made. Section 13 of the Act, however, contains provisions which allow a claim to be deemed to have been made when an earlier contact has been made in relation to the type of benefit.  The provision can only apply where certain specific criteria have been met (section 13(1)(d)).

12. Further, if a person (or another person on their behalf) contacts Centrelink in relation to a claim for a social security payment, and on the day of contact the person qualified for the payment, the person will be taken to have made the claim on the day of contact (section 13(3A)). However, for section 13(3A) to operate, Centrelink must send the person written notice that the Department was contacted on that date, in relation to the making of a claim, and the person must also lodge a claim form within 13 weeks of the date of contact with Centrelink.

13. Mr Georgopoulos would need to satisfy all the requirements of section 13(3A) but as he did not lodge a claim within 13 weeks, after he contended the Department was contacted, he could not receive the benefit of the backdating provisions of that section, beyond the start date adopted by the ARO.

14.Alternatively, the provisions of Schedule 2 clause 11(2) may be relevant:

11.(2)  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

day on which the claim was made.

If that were to apply, his entitlement could be backdated to four weeks before his written application. 

CONSIDERATION OF THE EVIDENCE

15.     In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.

16. I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 (‘the T-documents’), which I took into evidence.  Mr Georgopoulos gave evidence, as did his partner, who I agreed to refer to only as, Ms S.

17.     Mr Georgopoulos had not previously given Centrelink the information he was reported to have told the SSAT.  His evidence was that he had phoned Centrelink on 25 July 2005 but was told that he could not get Newstart Allowance because of his assets.  In relation to Disability Support Pension, he was told he would have to wait 13 weeks to claim and he was advised to call again on 10 October 2005.  He did not call on that date and could not remember why he had not.  He phoned Centrelink on 27 February 2006 and was told to phone again on 4 May 2006.  He phoned Centrelink on 4 May 2006 and was told he was required to wait six months before he could claim DSP.  He showed the SSAT a diary entry for a meeting with his barrister on 3 October 2006 who had questioned him about whether he had applied for DSP.  He said he had previously had a similar conversation with his solicitor on 12 August 2005 but did not then contact Centrelink.  He phoned Centrelink on 9 October 2006.

18.     Mr Georgopoulos’ evidence before me was different again.  He said that within a couple of days of ceasing work, he rang Centrelink enquiring about DSP.  He relied on his diary to assert that this was on 25 July 2005.  He said he was told that there was a six month waiting period. 

19.     Mr Georgopoulos said he telephoned Centrelink again on 27 February 2006 and on 17 March 2006.  Newstart Allowance was discussed and he was again told of a six month waiting period.  On 4 May 2006 he phoned again and was told he had to wait.  He said he contacted Centrelink again on 14 August 2006 to enquire about his claim.  He phoned again on 5 October 2006, 6 October 2006, 9 October 2006 and 18 October 2006.  Each time he enquired about his claim.  Mostly he was told he had to wait for six months because of his money in the bank and the property he owned. 

20.     In cross-examination he said, at first, that when he would phone Centrelink he did not given his full name, address, customer reference number or any other identifying information.  He then said he did provide this information but denied he was changing his story.  He conceded that after the conversation of 27 February 2006 and 4 May 2006 he did not lodge a claim for DSP.  He also conceded that it was not until October 2006 that his lawyers told him to make a claim.

21.     He told me that he always asks Centrelink for a reference number and always writes it down.  Centrelink however has no note of any contact by Mr Georgopoulos personally before 10 October 2006.  The earliest notation at all is of his solicitor contacting Centrelink on 13 July 2006 about a preclusion period in the event the workers compensation claim settled.  This, of course, was irrelevant to a claim for DSP.

22.     Mr Georgopoulos specifically said that the first time he went into a Centrelink office was on 24 October 2006.  He also said that after completing his application on that date he had ‘heard nothing’ since.  In fact he receives the DSP.

23.     He and Ms S said they had appointments with their lawyers on 12 August 2005 and on 17 March 2006 and 8 June 2006.  They said that on each of those occasions their lawyers enquired why Mr Georgopoulos was not on benefits.  Ms S said that following each appointment with the lawyers Mr Georgopoulos would have contacted Centrelink, but she had no personal knowledge of that, as she was at work.

24.     Mr Georgopoulos said on 8 June 2006 his solicitor said he was going to ‘override the sickness benefits’.

25.     Mr Georgopoulos said he went to Centrelink but was given the wrong forms because they related to Newstart Allowance and not the DSP he sought.  Ms S thought he went to Centrelink after they had seen the lawyers and told them about the six month waiting period.  She conceded she could not be sure if this was before or after October 2006.

26.     The matter was adjourned because Mr Georgopoulos believed his solicitors would confirm that they had raised his entitlement to DSP as early as August 2005.  This may have gone some way to corroborating his evidence that he had tried to get Centrelink benefits from an earlier date.  Mr Georgopoulos provided a copy of a letter from his solicitor, Mr Koutzoumis, dated 11 December 2006.  The letter refers to Mr Georgopoulos having in the previous three or four weeks gone onto Centrelink benefits and discusses whether there might be a payback to Centrelink if the workers compensation claim was settled.  No letter was forthcoming about any advice in 2005 to seek DSP.

27.     Mr Georgopoulos relied on his diary to fix the date of his first contact with Centrelink as 25 July 2005.  His diary recorded ‘Rang Centrelink.  Six month waiting period.’  The diary had other entries about Centrelink before the date of grant of DSP: on 4 May 2006 (‘ring Centrelink’); 14 August 2006 (‘Centrelink’); 9 October 2006 (‘rang Centrelink’); 10 October 2006 (‘ring Centrelink’); and 18 October 2006 (‘ring Centrelink’).  Ms S said she did not know if the contacts were made on those dates because she was at work.  She said they would ‘do their homework’ each evening, by which she meant they wrote up their (shared) diary.

28. The best outcome Mr Georgopoulos can hope to achieve through this application for review is to have his DSP backdated to 10 October 2006, in that, in accordance with section 13, his claim must be lodged within 14 days after the date of his initial contact. Even if he contacted Centrelink earlier than this as he alleged then he would have had to follow up with lodging a claim form, which he did not do. Following his contact on 10 October 2006 and the lodgement of the form on 23 October 2006 his claim was backdated to the date of contact.

29.     The period could be further extended if he was suffering from a medical condition which affected his ability to lodge the claim (section 13(2)(e)) or if he was the carer of someone suffering from a medical condition which affected the claimant from being able to lodge the claim (section 13(3)(e)).  Neither of these applies as there was ample evidence that Mr Georgopoulos was able to travel to appointments with his lawyers throughout the period.  His diary also contains references to other appointments.  He was also able to travel, perhaps even daily, between his home and his girlfriend’s home.  While he receives carer’s payment in relation to his mother, there was no evidence that her condition affected his ability to attend Centrelink. 

30.     Mr Georgopoulos ultimately conceded that it was not until October 2006 that his lawyers told him to make a claim and Centrelink has no note of any contact by Mr Georgopoulos personally before 10 October 2006.  He specifically said that the first time he went into a Centrelink office was on 24 October 2006.  The diary entries on 4 May 2006, 9 October 2006, 10 October 2006 and 18 October 2006 do not of themselves establish that those (telephone) contacts were made.  Even if Mr Georgopoulos did make enquires of Centrelink in July 2005 as he contended, he did not make a claim within six months as he said he was advised to do.  Similarly, even if the solicitors discussed his entitlement to DSP earlier than October 2006 he did not complete an application until then.  Mr Georgopoulos said he went to Centrelink but was given forms relating to Newstart Allowance and not DSP.  Ms S did not know when that was but conceded it could have been in October 2006. 

31.     I therefore find that his DSP cannot be backdated beyond 10 October 2006.

DECISION

32.The Administrative Appeals Tribunal affirms the decision under review.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of MS N ISENBERG, SENIOR MEMBER

Signed:         ……………[sgd]……………….
  Associate

Date of Decision  14 December 2007
Date of Hearings  17 July 2007, 7 November 2007
Representative for Applicant     In person, assisted by his partner, Ms S.

Advocate of Respondent:        John Kenny, an advocate from the Centrelink Service Recovery Team, 17 July 2007

Hannelore Schuster, an advocate from Centrelink Service Recovery Team, 7 November 2007