HENRY CROPPER and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 446
•16 July 2012
[2012] AATA 446
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/5062
Re
HENRY CROPPER
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Dr P McDermott, RFD, Senior Member
Date 16 July 2012 Place Brisbane The Tribunal affirms the decision under review.
............[Sgd].....................................................
Dr P McDermott, RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Impairment Tables – Claim rejected as condition not given impairment rating – Applicant placed on other benefit type – Invitation by respondent to lodge another claim for disability support pension at later date – Claim for disability support pension approved – Application for claim to be backdated to earlier rejection date – Backdating provisions not applicable – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94, sch 1B
Social Security (Administration) Act 1999 (Cth) ss 13, 15, 41, 42, 107, sch 2
REASONS FOR DECISION
Dr P McDermott, RFD, Senior Member
16 July 2012
INTRODUCTION
Mr Henry Cropper (the applicant) seeks review of a decision of Centrelink to grant him disability support pension (DSP) from 29 October 2010. I have to determine whether he should be granted DSP from an earlier date.
HISTORY OF THE MATTER
On 17 November 2008, the applicant lodged a claim for DSP, which was rejected as he did not have an impairment rating of 20 points. On 1 December 2008, the applicant lodged another claim for DSP. A job capacity assessment was conducted on 10 December 2008 and the applicant was assigned nil impairment ratings for his conditions as they were not considered to be fully diagnosed, treated and stabilised. On 16 January 2009 Centrelink informed the applicant of the decision to once again reject his claim for DSP.
On 22 January 2009, the applicant was assisted to lodge a claim for newstart allowance and this benefit was granted with effect from 24 November 2008.
From time to time the Applicant then lodged medical certificates with Centrelink. On 26 August 2009, following the referral to vocational rehabilitation, a job capacity assessment was conducted which records that the applicant had a permanent medical condition which was considered to be fully diagnosed, treated and stabilised. However, the assessor’s report reveals that she did not assign an impairment rating. Nevertheless, even if the condition was assigned an impairment rating, DSP could not then be granted to the applicant as there was other evidence that he could work.[1]
[1] Exhibit A, T-document 10, folio 40.
On 27 September 2010, the applicant attended a further job capacity assessment and, on this occasion, two of his conditions were considered to be fully diagnosed, treated and stabilised. On 29 October 2010, the applicant was invited by Centrelink to claim DSP. On 5 November 2010, the applicant lodged a new claim for DSP.
On 21 December 2010, a decision was made to grant DSP to the applicant with effect from 29 October 2010. On 14 March 2011, the applicant sought payment of DSP from 2008 on the basis that his condition was no worse in 2011 than it was in 2008. On 17 March 2011, the decision that he be paid DSP with effect only from 29 October 2010 was affirmed by the original decision maker. On 6 April 2011, the decision was affirmed by an authorised review officer. On 18 October 2011, the Social Security Appeals Tribunal affirmed the decision.
After the applicant was granted DSP, he applied for compensation for detriment caused by defective administration. This claim was made on the basis that the applicant ought to have been invited to apply for DSP from an earlier date. The claim was decided in favour of the applicant who was paid an amount of $3,059.59 for the period 9 September 2009 to 29 October 2010 as well as an additional amount for the period 2 June 2010 to 26 June 2010, a period when he was overseas. The claim was paid from 9 September 2009 as this was the date from which Centrelink “could” be satisfied that the applicant would have been medically qualified for DSP and a claim ought to have been invited.
LEGISLATION
This application must be determined under the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
CONSIDERATION
The applicant elected not to give evidence and asked for his application to be decided on the basis of the evidence before me.
For the applicant to be granted DSP in 2008 he would have then had to have met the requirements of s 94(1) of the Act. That subsection provides that a person is qualified for disability support pension if that person has a physical, intellectual or psychiatric impairment; and the person's impairment is of 20 or more points under the Impairment Tables;[2] and the person has a continuing inability to work (or participated in the supported wages system, which is not the case). All of these requirements must have been satisfied at the time the claim was lodged, or within a period of 13 weeks after lodgement,[3] before DSP could have been granted to the claimant.
[2] See the Impairment Tables in Schedule 1B of the Act,
[3] See sch 2, cl 3 and cl 4 of the Social Security (Administration) Act 1999 (Cth).
I am satisfied that in 2008 the applicant had an impairment within the meaning of s 94(1)(a) of the Act, the impairment being a contracture condition of his right hand.
I do not find that in 2008 the impairment of the applicant was 20 or more points under the Impairment Tables in accordance with s 94(1)(b) of the Act. In August 2008, the applicant had undergone surgery for a right hand contracture condition. The plastic surgery registrar at the Mater Hospital, Brisbane, reported upon the condition of the applicant on 3 December 2008. In her report she concluded that the then impact on the patient's ability to function was expected to persist for less than 3 months and that the condition would significantly improve within the next 2 years. She also mentioned in her report that the patient would have “on-going hand therapy”. In these circumstances, while the contracture condition could be regarded as being fully diagnosed, it could not be regarded as being fully treated and stabilised. I therefore conclude that the contracture condition of the right hand could not then have been assigned a rating under the Impairment Tables.
The applicant has other conditions, such as chronic pain in his right hand and reduced range in his right shoulder. The plastic surgery registrar at the Mater Hospital, in her report of 3 December 2008, does not report upon these conditions. However, in a later report of 19 August 2009 the treating doctor at the Mater Hospital had reported that both of these conditions were likely to show considerable improvement within two years. In these circumstances these conditions could not then be assigned a rating as they had not stabilised.
I also find that in 2008 the applicant did not satisfy the requirements of s 94(1)(c) of the Act. I cannot be satisfied that the applicant then had a continuing inability to work. The plastic surgery registrar in her report of 3 December 2008 had opined that the applicant would be not able to do right handed work from 11 August 2008 until 19 October 2008 but would be able to “resume work thereafter”. At the hearing the applicant tendered medical certificates that extended the period of time that he was unfit for work until 18 March 2009. However, while these certificates are evidence of a temporary inability to work they do not prove that there was then “a continuing inability to work” as required by s 94(1)(c) of the Act. The applicant himself was then hopeful of a return to work and, at the hearing I drew his attention to the statement in the job capacity assessment report of 10 December 2008 that he was “hopeful of returning to work sometime in the future”, although not as a mechanic. The case advanced by the applicant is that his condition was the same from 2008 onwards. However, there is evidence before me that the applicant was capable of work in 2009. A medical report, dated 19 August 2009, from the Mater Hospital certifies that the applicant was capable of working for 8 hours or more per week.[4]
[4] Exhibit A, T-document 10, folio 40.
I have, after reviewing the material before me, concluded that the applicant could not have been granted DSP in 2008 because he does not satisfy the requirements of s 94(1) of the Act. Even if he had satisfied the requirements of that subsection, I have come to the conclusion that under social security law there cannot be the “backdating” of any payments of DSP to the applicant. This is because of the application of s 107(3) of the Administration Act.
Subsection 107(3) of the Administration Act provides:
(3) If:
(a) a decision (the original decision) is made rejecting a person's claim for a social security payment or concession card; and
(b) the person is given a notice informing him or her 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) a decision that the claim be granted is made as a result of the application for review;
the determination embodying the last-mentioned decision takes effect on the day on which the application for review was made.
I have considered the application of s 107(3) of the Administration Act to the case of the applicant. On 16 January 2009, the applicant was sent a letter informing him of the original decision to reject his claim for DSP. This letter would, in my view, be a notice under s 107(3)(b) of the Act. There is no evidence that the applicant requested a review of the original decision within 13 weeks after the notice was given. The respondent has quite properly submitted that his request for review of the original decision was made on 14 March 2011; this was when the applicant contacted Centrelink to seek payment from 2008 on the basis that his condition was no worse in 2011 than it was in 2008. As his contact on 14 March 2011 is a request, it was made after the applicant was granted DSP. The operation of s 107(3), which provides that the determination takes effect when the application for review is made, has the consequence for the applicant that even if a determination was made to grant the 2008 claim for DSP, the determination could only take effect from the date when an application for review was made, that being 14 March 2011. As he had already been granted DSP with effect from 29 October 2010, such a determination would be futile.
I have considered whether the applicant had any entitlement to be paid DSP at any date earlier than 29 October 2010. This issue requires the consideration of what is known as the “start day” rules. Subsection 41(1) of the Administration Act provides that “[u]nless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person's start day in relation to the social security payment”. Section 42 of the Administration Act provides that “for the purposes of the social security law, a person's start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2”. Ordinarily, under cl 3(1) of Schedule 2 a person's start day will be the day on when a claim is made. However, s 13 of the Administration Act provides for deemed claims in certain circumstances where the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim and the person then lodges a claim for the social security payment within 14 days after they had contacted the Department. In those circumstances the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
Under ss 41 and 42 of the Administration Act and cl 3(1) of Schedule 2, the start date of payment for DSP is the date on which the claim was made, which was 5 November 2010. However, s 13 of the Administration Act provides that the applicant is deemed to have made the claim on 29 October 2010; this is because the date that he lodged the claim, 5 November 2010, was within 14 days from the date when he had contact with Centrelink, on 29 October 2010, about claiming DSP.
For the sake of completeness I have considered whether DSP could have been paid at an earlier date under any other provision of the social security law. I have concluded that s 15(4) of the Administration Act would not enable the claim to be “backdated” to when the applicant first claimed newstart allowance. This is because on that date, 22 January 2009, I cannot be satisfied that the applicant was qualified for DSP in accordance with s 15(4)(b) of that Act as a medical report from the Mater Hospital after that date, on 19 August 2009, contains a statement that the applicant was then capable of employment.
I consider that the applicant cannot be paid DSP any earlier than 29 October 2010. There are no provisions in either the Act or the Administration Act which allow for an earlier date of payment.
At the conclusion of the hearing I gave the applicant 7 days to make any further submission or submit further evidence: no submission or further evidence was made by the applicant within this time.
DECISION
I affirm the decision under review.
I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member. ............[Sgd]....................................................
Associate
Dated 16 July 2012
Date(s) of hearing 5 July 2012 Applicant In person Advocate for the Respondent Bob Hamilton
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