Griffiths and Department of Family and Community Services

[2001] AATA 296

DECISION AND REASONS FOR DECISION [2001] AATA 296

ADMINISTRATIVE APPEALS TRIBUNAL)
  Nº V00/1357
GENERAL  ADMINISTRATIVE DIVISION)

Re:            DAVID LESLIE GRIFFITHS

Applicant

And:         SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Mrs H.E. Hallowes, Senior Member
Date:             11 April 2001
Place:            Melbourne

Decision:The decision of the Social Security Appeals Tribunal made on 18 September 2000 is varied. Newstart allowance is payable to Mr Griffiths on his start day, 6 March 2000, under clause 11, Division 2, Part 3 of Schedule 2 of the Social Security (Administration) Act 1999.

(sgd) H.E. Hallowes
  Senior Member
  SOCIAL SECURITY — newstart allowance ("NSA") — certified unfit for work for 4 months from 25 June 1999, by medical certificate dated 30 July 1999 — decision dated 30 July 1999 that exempt from activity test until 24 September 1999 — advice on 30 July 1999 that continuation form due to be lodged on 11 August 1999 — no continuation form lodged — NSA cancelled from 29 July 1999, advised by letter 26 August 1999 — next contact by applicant 3 April 2000 —applicant certified as unfit for work during past 12 months — NSA paid for 13-week period covered by medical certificate following cancellation due to administrative error — whether arrears of NSA payable — 4 weeks arrears payable
Social Security Act 1991 s.603F(2), (4A)
Social Security (Administration) Act 1999 ss.13(2), 109(2),
Acts Interpretation Act 1901
Evidence Act 1995 (Cth)

REASONS FOR DECISION

11 April 2001  Mrs H.E. Hallowes, Senior Member

1. Some people's lives do not run smoothly.   Mr Griffiths's life has not run smoothly since the time when he was working as a young lad at a sawmill and his leg was deliberately broken in three places by other employees.   Things tend not to go Mr Griffiths's way, but the Tribunal, in applying the relevant provisions of the Social Security Act 1991 ("the Act") and the Social Security (Administration) Act 1999 ("the Administration Act") to his circumstances, can only vary the decision under review such that, following cancellation of Mr Griffiths's newstart allowance ("NSA") on 29 July 1999 as a result of administrative error, Mr Griffiths's start day in relation to the regranting of his NSA is 6 March 2000. Mr Griffiths's application for review of the decision of the Social Security Appeals Tribunal ("SSAT") may however draw attention to the financial difficulties faced by him, and others in similar circumstances, to whom social security payments are not payable under the Act at a time when they desperately need money to try and re-establish their lives. They need money to feed themselves, to dress suitably when applying for work and to cover their fares as they attempt to rejoin the workforce. Mr Griffiths has found that the country area where he now resides does not have people to assist him, assistance he understands would be available to him in Melbourne where he once lived. Mr Griffiths left Melbourne in order to try and get his life back on an even keel after, as he described it, he fell apart in Melbourne in a chronic manic/depressive state with suicidal thoughts.

2. Mr Griffiths seeks review of a decision of the SSAT that NSA is payable to him, but only from 20 March 2000. The SSAT set aside a decision of a delegate of the Secretary, as affirmed by an authorised review officer ("ARO"), that NSA was payable to him from 3 April 2000. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents"). Mr D. Perdon, an advocate with Centrelink, who represented the Secretary at the hearing, provided Mr Griffiths and the Tribunal with a statement of the Secretary's case and a copy of relevant provisions of the Act and the Administration Act, the Acts Interpretation Act 1901 with respect to the service of documents and the Evidence Act 1995 (Cth) with respect to articles sent by pre-paid post.

3. Mr Perdon put to the Tribunal that the decision of the SSAT should be varied, as Mr Griffiths's incapacity had delayed him again claiming NSA, and he was entitled to be paid NSA from 6 March 2000, clause 11(2), Division 2, Part 3 of Schedule 2 of the Administration Act, providing:

   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.

The SSAT set out clause 11(2) and subsection 13(2) of the Administration Act in its reasons for decision. Subsection 13(2) provides:

13(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.  

Mr Perdon noted that the above provisions entitle Mr Griffiths to be paid NSA from 6 March 2000 rather than 20 March 2000, as found by the SSAT.  

1. The documents disclose that Mr Griffiths lodged a NSA continuation form (SU19(NR)) on 30 July 1999, together with a medical certificate.   Dr A. Richards, Mr Griffiths's general practitioner, advised on the medical certificate that Mr Griffiths had had psychological problems for many years; that his prognosis was poor and that he was not likely to be able to return to full-time or part-time work for more than 12 months.   Dr Richards expressed the opinion that Mr Griffiths had been, and would be unfit for work from 25 June 1999 to 30 October 1999.   The summary of a text, entered into the department's computer on 30 July 1999, noted that NSA was payable to Mr Griffiths and that his medical certificate covered him for the period 25 June 1999 to 30 October 1999.   By letter dated 30 July 1999, Mr Griffiths was advised that he was exempt from the activity test because he was unfit for work and that he would need to provide a new medical certificate to the Secretary by 8 October 1999.   However, due to an administrative error, Mr Griffiths was sent a further notice by the Secretary, including a further continuation form for the period 29 July 1999 to 11 August 1999, which was due to be lodged on the latter date.   As Mr Griffiths did not lodge this form, his NSA was cancelled from 29 July 1999 and Mr Griffiths was so advised by letter dated 26 August 1999.

2. Mr Griffiths told the Tribunal that, in July 1999, he was living in a caravan on a property owned by his parents in a small coastal town in Victoria.   He said that he had "lost the lot" in Melbourne and he moved to the caravan but he was not prepared to accept that he was so sick that he could not work.   He described himself as falling apart due to a chronic manic/depressive state.   He was suicidal.   He had low self-esteem.   He had "lost the plot".   Due to his failure to lodge earlier claim forms on time, approximately $800 arrears of NSA had been paid into his bank account at the end of July, which he had used to repay loans from his parents who had supported him and who continued to support him in their own way.   His mother would sometimes tell him that letters had arrived for him but that did not mean he would open the letters and the Tribunal is satisfied that, at that time, Mr Griffiths did not have the capacity to take care of, or to be concerned about his personal affairs.   He has some recollection of receiving the letter and the form dated 30 July 1999, referred to in paragraph 4 above, but, as he had been advised that he did not have to lodge any further continuation forms for three months due to his general practitioner's medical certificate, he assumed that Centrelink would "sort it out".  

3. Mr Griffiths said that he does not drive and he is dependent on a community bus or his parents to transport him into the provincial centre where the regional office of Centrelink is located.   Mr Griffiths commented to the Tribunal that, some years ago, field workers "used to check on you if you were sick" but that support is no longer available to him.   No psychiatric services were available to him in July 1999.   All he knew was that he was "in trouble".  

4. The next contact Mr Griffiths had with Centrelink was by telephone on 3 April 2000.   It is recorded that he was "APPLYING FOR NSA INCAP".   On the same day Mr Griffiths was sent a NSA claim form by Centrelink to complete and return, and he was advised that, if he was qualified for payment of NSA on the day of his contact, 3 April 2000, that day would be used as his start day for payment of NSA.  

5. Mr Griffiths provided Centrelink with a further medical certificate from Dr Richards, who advised that he had examined Mr Griffiths on 5 April 2000; that Mr Griffiths was unfit for work from 3 April to 3 July 2000; that he was suffering from depression and hepatitis C; that he had been suffering from these illnesses for the past year, and that he had been unfit for work for that time.   On 13 April 2000 Mr Griffiths made a statement that, because of his illness, he had lost touch with what was going on and that he could not bring himself to contact anybody.

6. On 13 April a decision was made by a delegate of the Secretary to grant NSA to Mr Griffiths from 3 April 2000.   A computer text note records:

   . . . Because of the length of time I referred David to the Social Worker for assessment whether David was capable of looking after his affairs.   Social Worker felt that David was now in charge of his affairs and could not support backdating.   I contacted David by phone and advised him that I was prepared to pay him on the medical certificate – (I felt this was necessary as the Medical certificate was not coded —  and had this been coded David's payments could have continued).  However I told him that I could not pay him for the period 1/11/99 to the 2/4/00 because he had not contacted or provided a new medical certificate.  . . .  

Mr Griffiths told the Tribunal that he could not understand why the social worker did not support "backdating" as the social worker had only expressed an opinion as to whether Mr Griffiths was capable of looking after his affairs when he had lodged his further claim for NSA in April 2000 rather than assessing his circumstances during 1999.   However, whatever opinion was expressed with respect to Mr Griffiths's ability to manage his own affairs during the period, he was not paid NSA following its cancellation.

1. Even if Mr Griffiths's NSA was cancelled due to administrative error, there is no joy for Mr Griffiths as there is no discretion for decision-makers under the social security law to pay NSA other than in accordance with provisions concerning start days and notices.   Following his request that the decision be reviewed, a delegate of the Secretary advised him, by letter dated 3 May 2000, that:

   You had not ask [sic] for review of the cancellation within a 3 month period.   It had been 10 months since you were last paid on the 2/8/99.   I paid you arrears until the 30/10/99 because your medical certificate had not been processed.   But I could not justify paying you from the 1/11/99 to the 2/4/00 because you had not lodged a medical certificate or queried why you were not receiving payment until April 2000.  

2. In his contentions Mr Perdon stated that:

   10b While the administrative error involved in the cancellation of the applicant's NSA has been substantially ameliorated by the payment of NSA to him for the unpaid balance of his original medical certificate ie 30/7/99-30/10/99, that payment would also appear to be legally incorrect under both s109(2) of the SSAA [Social Security Administration Act], which requires applications for review to be within 13 weeks of notice before arrears can be paid, and s603F of the SSA [the Social Security Act], which only allows a maximum of 13 weeks payment on a first medical certificate and requires a continuation medical certificate within 14 days of the 13 week expiry of the first. However, the respondent does not seek the repayment from the applicant of the NSA paid for 30/7/99-30/1099;

3. On 20 March 2000 provisions under the Act with respect to applications for review of decisions and dates from which social security payments can be made were repealed and replaced by relevant provisions under the Administration Act. On 12 May 2000 the ARO advised Mr Griffiths that, in reconsidering the decision which had been made not to pay him NSA for the period from 31 October 1999 to 3 April 2000, he applied section 109 of the Administration Act. Section 109(2) provides:

   109(2)     If:

   (a)a decision (the original decision) is made in relation to a person's social security payment; and

   (b)a notice is given to the person informing the person of the original decision; and

   (c)more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and

   (d)the favourable determination is made as a result of the application for review;

   the favourable determination takes effect on the day on which the application for review was made. 

The ARO decided that the correct decision had been made, as Mr Griffiths had not sought review of the decision cancelling his NSA within three months.  

1. Subsections 603F(2) and 603F(4A) of the Act provide with respect to relief from the activity test that:

   603F(2)    Subject to this section, a person's maximum exemption period is:

   (a)if the person has, whether before or after the commencement of this section, given the Secretary a medical certificate for the purpose of enabling the Secretary to decide whether the person was required to satisfy the activity test - the lesser of the following periods:

   (i)the period stated in the certificate as the period for which the person would be incapacitated for work;

   (ii)the period of 13 weeks that started or starts on the first day of the period so stated in the certificate; or

   (b)otherwise - the period of 4 weeks that started or starts on the day determined by the Secretary to have been the day on which the person's incapacity for work began.

   . . .
   603F(4A) If:

   (a)a person was exempt, under this Subdivision, from the activity test; and

   (b)within 14 days after the end of the person's maximum exemption period the person gives the Secretary a certificate of a medical practitioner that states the matters listed in paragraph 603C(1)(e) and is in accordance with a form approved under that paragraph; and

   (c)the Secretary is satisfied that the person's incapacity for work has continued after the end of the person's maximum exemption period and that the incapacity will continue;

   the Secretary may extend the maximum exemption period by a period that is not more than the lesser of the following periods:

   (d)a period equal to the period stated in the certificate as the period for which the person would be incapacitated for work;

   (e)13 weeks.

2. Mr Perdon conceded that NSA should be paid to Mr Griffiths during the four weeks ending immediately before the day on which he again made contact with Centrelink under clause 11(2) of Schedule 2 of the Administration. However, he contended:

   10a The applicant's NSA was cancelled, from date paid to 28/7/99. He was given notice of that decision pursuant to the social security law, the Acts Interpretation Act and the Evidence Act via the notice of 26/8/99. He sought review of that decision on 3/4/00, at the earliest. The social security law provides that where a person seeks review over 13 weeks of being given notice of a decision, then any favourable review result is limited to the date that review was requested, in this case 3/4/00. By that date, the applicant was again in receipt of NSA. In addition, the social security law provides that where a cancellation is set aside on appeal, the setting aside does not void the cancellation from the time it was made nor revives the pre-existing payment determination. While the cancellation of the applicant's NSA was due to administrative error, neither did he lodge the fortnightly form due 11/8/99 nor provide a new medical certificate by 8/10/99;

3. As the law now stands, there is no provision which the Tribunal can apply such that Mr Griffiths can be paid NSA for the period in contention, between 30 October 1999 and 6 March 2000. The Tribunal will make no finding with respect to Mr Perdon's contentions concerning the period from 30 July 1999 to 30 October 1999, for that was not put in issue by him. Mr Griffiths has fallen through the safety net of financial support provided by the social security law as he failed to provide the Secretary with a medical certificate by 8 October 1999. It appears at that time he was unable to take action to pursue any entitlement he may have had under the Act. State law provides for guardians to be appointed for those who, by reason of disability, are unable to make reasonable judgments relating to their circumstances. Perhaps it was assumed that Mr Griffiths's parents would act on his behalf during the relevant period although he appears not to have been in a condition to give them such authority. The Tribunal accepts Mr Griffiths's evidence that he was not aware of how sick he was. In isolating himself from the dangers he perceived in the wider community, he was also isolating himself from entitlements he may otherwise have had under the social security law. There is no discretion under the social security law enabling decision-makers to take a lenient view of those who fail to comply with the provisions with respect to notices. Mr Perdon told the Tribunal that, due to the size of Centrelink's administration, it must be assumed by Centrelink staff that customers, who do not lodge an appeal within 13 weeks against a decision cancelling their NSA, nor lodge further medical certificates, have found work or other means of support.

4. The Tribunal finds that Mr Griffiths is deemed to have been given the notice dated 30 July 1999 under the social security law, which advised him that he must lodge a new medical certificate with Centrelink by 8 October 1999, and that, even if the administrative error is rectified, Mr Griffiths's failure to provide a medical certificate within 14 days of 8 October 1999 would have led to cancellation of his NSA.   Mr Griffiths said that, if he had received a further notice in October, he would have made contact with Centrelink but the Tribunal cannot act on that assumption.

1. The Tribunal will vary the decision of the SSAT as submitted by Mr Perdon.

   I certify that the seventeen [17] preceding paragraphs are a true copy of the reasons for the decision herein of
   Mrs H.E. Hallowes, Senior Member

   (sgd)       Catherine Thomas
                 Personal Assistant

   Date of Hearing:  16.02.01
   Date of Decision:  11.04.01
   Solicitor for the Applicant:           NIL — IN PERSON
   Solicitor for the Respondent:       Mr D. Perdon, Advocate with Centrelink