Gillings and Secretary, Department of Employment and Workplace Relations

[2006] AATA 1016

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 1016

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/1429

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JEYARANI SOPHIA GILLINGS

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal R Hunt, Senior Member

Date27 November 2006

PlaceSydney

Decision The decision under review is affirmed.  

...................[Sgd]......................

R Hunt
  Senior Member

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – parenting payment – birth of child – applicant qualified – back-dating for maximum period allowed – enquiry as to entitlement not treated as a claim – Department advised applicant and provided application form – late application – commencement date of payment – decision affirmed.

Social Security Act 1991 Pt 2.10

Social Security (Administration) Act 1999 ss 11(1), 13, 41(1), 42 and 101, Schedule 2, cl 11(1) and (2), 13(2)

REASONS FOR DECISION

27 November 2006

SUMMARY

1.      Mrs Gillings, the applicant, sought review of a decision that she was not entitled to back-dating of her parenting payments to the date of birth of her child as she had failed to make a claim until some months later. On review, I have decided that Mrs Gillings’ claim already has been back-dated to the extent permissible and that the reviewable decision is correct. My reasons are set out below.

ISSUE

2.      The Tribunal was asked to decide whether Mrs Gillings was prevented from receiving parenting payment in arrears back-dated to the date of birth of her son. This depended on whether her late application was due to her medical condition being the “sole or principal cause” of delay in making application for the payments. Further, the tribunal was asked to consider whether Mrs Gilling’s condition had a “significant adverse effect” on her ability to lodge the claim or to ask someone else to do so on her behalf. There is no dispute that Mrs Gillings did, on 14 January 2005, lodge a claim for parenting payment in the appropriate form and is qualified for the allowance.

THE LEGISLATION

3.      The relevant legislation is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act). Section 11(1) of the Administration Act provides that any applicant for a social security payment must make a claim for that payment in accordance with that particular division of the Act. Section 41(1) of the Administration Act further provides that unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the parson’s start day in relation to the social security payment. Section 42 goes on to provide that for the purposes of the social security law, a person’s start day in relation to a social security payment is the day worked out in accordance with Schedule 2.

4. Schedule 2 to the Administration Act provides rules for working out the “start day” for various social security allowances. Clause 11 of the schedule makes the following provision regarding an incapacitated claimant:

(1)  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 within 5 weeks after the day on which the incapacity begins; and

(c)  the person continues to suffer the medical condition from the day on which the incapacity begins until the claim is made;

the person's start day in relation to the benefit or pension is the first day on which the person was qualified for the benefit or pension in the period starting on the day on which the incapacity began and ending on the day on which the claim was made.

(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.

5. Section 13 of the Administration Act also contains a provision for deemed claims. This section provides in part:

(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; [emphasis added]

the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.

…

BACKGROUND TO THE DISPUTE

6.      Mrs Gillings is married and had a son who was aged 11 when she gave birth again in 2004. A record from a genetic counsellor dated 25 February 2004 mentions that Mrs Gillings had two miscarriages before she obtained genetic counselling. Mrs Gillings gave birth to her baby on 6 October 2004 at the age of 41 and experienced a difficult labour. After over 7 hours in labour, her doctor performed a caesarean birth.

7.      According to a hospital record before me, Mrs Gillings was discharged from hospital 5 days after the birth, on 11 October 2004, with a recommendation that she see the family doctor if she had any concerns. The hospital records also show that they wrote to her doctor, Dr Ahluwalia.

8.      After discharge, Mrs Gillings claims she was too unwell to fill out the parenting payment claim form. She says she continued to suffer from birth trauma and lack of sleep and experienced continuing medical problems such as minor post-natal depression. Mrs Gillings contacted Centrelink on a few occasions to discuss her entitlement to the parenting payment allowance and was sent the application form but only presented the completed application form on 14 January 2005. The Secretary processed her claim and started paying the allowance from the date the application was lodged.

THE EVIDENCE BEFORE THE TRIBUNAL

9.      Apart from the T documents and the Secretary’s facts and contentions, I had available to me hospital and medical records furnished by Mrs Gillings, which included a discharge summary. She set out an account of the birth and the difficulties she experienced afterwards as well as supplying a number of articles about the effect of sleep deprivation on new parents and post-natal depression. She also forwarded an article critical of Centrelink procedures.

10.     The parties asked me to make a decision on the papers so no hearing was held.

MRS GILLINGS’ CLAIMS

11.     The only issue before me is whether Mrs Gillings’ claim can be backdated to 6 October 2004 when she would have been eligible had she made a formal claim closer to that date. Mrs Gillings referred in her written submission to “such lengthy forms” that she was required to fill out and thought her concerns that her delay in completing the claim form was explained by a doctor’s certificate she furnished to Centrelink. Mrs Gillings’ medical documents confirm her caesarean took place and that she had some complications, including a urinary tract infection. Mrs Gillings says she haemorrhaged during the birth and had a blood transfusion and attached an article about the rise of transfusions for women giving birth.

12.     A check of the Centrelink records before me shows that Dr Ahluwalia certified on 19 January 2005 that Mrs Gillings had surgery on 6 October 2004 and was unfit to resume work or to fill in long forms for 8 weeks. This document was date stamped as received on 25 January 2005. For the review, Mrs Gillings furnished a further certificate from Dr Ahluwalia written on 7 July 2006 that again stated that mrs Gilling had surgery on 6 October 2004 and added that she was feeling depressed and was unfit to fill in “the forms” for 8 weeks.

13.     Before me is a copy of a letter Centrelink wrote to Mrs Gillings on 18 October 2004 acknowledging her contact that day and advice of her intention to apply for the parenting payment. The letter advised her to lodge her claim immediately and spelled out that the allowance would commence on 18 October 2004 if she lodged the claim form on or before 1 November 2004. It also gave her advice about what she should do if she had any medical condition that prevented her from lodging the claim within 14 days and gave her until 17 January 2005 to lodge a claim if her condition improved. Centrelink forwarded a claim form and further information with the letter.

14.     Notes on the Centrelink file record that Mrs Gillings made contact on several subsequent occasions, including 28 October 2004, 8 December 2004 and 16 December 2004. Mrs Gillings wrote a letter dated 12 January 2005 which accompanied her claim lodged a few days later. Centrelink records show additional communications with Mrs Gillings about other assistance she claimed and was granted in the interim. For example, she was granted family tax benefits and maternity allowance.

CONSIDERATION

15. An application for a benefit must be in accordance with the requirements of the Act. Giving birth does not give rise to an automatic entitlement to the parenting payment. Parenting payments are not made to persons whose earnings are too high. As well, other benefits may interact or affect the entitlement. Upon a pension or income support supplement becoming payable to the person, the rate at which parenting payment is payable to the person may be reduced; s 101 Administration Act. Until Mrs Gillings furnished necessary information to Centrelink, it would not be appropriate to grant any such payment.

16. Mrs Gillings has not suggested that her discussion with a Centrelink officer at any stage in 2004 amounted to an application for the payment. Nor would it amount to an application under s 11(1) of the Administration Act. She argues, however, that she should be granted the benefit from the date that she gave birth or some earlier date than 14 January 2005.

WAS MRS GILLINGS INCAPACITATED FOR WORK AS A RESULT OF A MEDICAL CONDITION?

17. Mrs Gillings furnished 2 medical certificates that explained that she was incapacitated for a period. Dr Ahluwalia twice certified that Mrs Gillings was unwell and could not fill out a claim form for 8 weeks after the surgery on 6 October 2004. Apart from Mrs Gillings’ own account of her condition, there is no other evidence to suggest she had any medical condition after the lapse of 8 weeks which might prevent her from coping with the claim form. Section 11 of the Administration Act allows some backdating of entitlements of parenting payment. For the purposes of s 11 of the Administration Act, I accept Dr Ahluwalia’s assessment as accurate. He is Mrs Gillings’ family doctor and he gave her the second certificate on 7 July 2006, some months after issuing a certificate in January 2005 to similar effect. This means that Mrs Gillings was incapacitated until 1 December 2004.

18.     On the basis that I have not found any relevant “incapacity” beyond 1 December 2004, this does not explain the continuing delay. It does not excuse the lateness of the application made on 14 January 2005. Even then, her application was not supported by a medical certificate until 25 January 2005.

19.     It follows that Mrs Gillings’ claim for parenting payment cannot be backdated under clause 11. She did not make a claim for a benefit within 5 weeks after the day on which the incapacity began so her claim cannot be backdated under subcl (1) to the day on which she became eligible. Further, she made a claim for a benefit more than 5 weeks after the day on which the incapacity began. A claim is possible after a delay of more than 5 weeks but there are additional requirements under subcl (2). She has not met these tests in my view. She has not satisfied me that she has continued to suffer the medical condition from the day on which the incapacity began until the claim was made, as expected under paragraph 2(c)(i). Her doctor has certified otherwise. For this reason, I find Mrs Gillings has not demonstrated for the purposes of paragraph 2(c)(ii) that any medical condition was the sole or principal cause of her failure to make the claim within 5 weeks after the day on which the incapacity began. It follows that I cannot find her start day is the first day on which she was qualified for parenting payment in the period of 4 weeks ending immediately before the day on which the claim was made. In any event, clause 11(2) does not permit backdating beyond 4 weeks before the claim.

DID MRS GILLINGS’ CONDITION HAVE A “SIGNIFICANT ADVERSE EFFECT” ON HER ABILITY TO LODGE THE CLAIM?

20. In some circumstances, a person is taken to have made a claim for a social security payment on the day on which the Department was contacted if a claim is lodged within 14 days after the Department is contacted. See s 13(1) of the Administration Act set out above. Subsection 13(1) permits backdating where a claim is lodged within 14 days of contact. Mrs Gillings contacted Centrelink on a few occasions but her last contact before the date of lodgement, 14 January 2005, was on 23 December 2004, more than 14 days previously, according to the material before me. Otherwise, it might be possible to backdate her claim to 31 December 2004.

21. Another provision, s 13(2), allows backdating where a person lodges a claim for the payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and the Secretary (or the tribunal) is satisfied that, 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 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. In deciding whether Mrs Gillings’ condition had a significant adverse effect on her ability to lodge the claim earlier, I note that her disability, according to the medical opinion furnished, did not continue part 8 weeks, ending on 1 December 2004. I therefore am not satisfied that it accounts for the continuing delay over the 6 weeks following 1 December 2004, even if it did have a significant adverse affect for a time. Mrs Gillings has not provided evidence that satisfies me, on balance, that her medical condition had a significant adverse affect on her ability to lodge the claim any sooner than 14 January 2005. It follows that Mrs Gillings’ claim for parenting payment cannot be backdated under s 13. As Mrs Gillings does not meet any of the criteria for backdating her claim, I must affirm the decision under review.

DECISION

22.     The decision under review is affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Hunt

Signed:         Rhonda Pietrini
  Associate

Date/s of Hearing  22 November 2006       
Date of Decision  27 November 2006
Solicitor for the Applicant          N/A – Self-represented applicant         
Solicitor for the Respondent     Laura Gazi