Holmes and Secretary, Department of Employment and Workplace Relations

[2007] AATA 2006

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2006

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0637

GENERAL ADMINISTRATIVE DIVISION		)
Re		NOEL HOLMES

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms Naida Isenberg, Senior Member

Date30 November 2007  

PlaceSydney

Decision The decision under review is set aside, and in substitution therefor the Tribunal decides that the start date for payment of the Applicant’s disability support pension is 14 April 2005.

………[sgd]……………

Ms Naida Isenberg

Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – criteria for making a claim – claimant not in Australia when initial enquiry made – residential qualification criteria -  incapacitated claimant – limited discretion to backdate pension – decision under review set aside

Social Security (Administration Act) 1999 – sections 11, 13, 13(3A), 16, 29 and schedule 2

Social Security Act 1991 – section 94

Dellaportas and Secretary, Department of Family and Community Services [2001] AATA 837

REASONS FOR DECISION

30 November 2007 Ms Naida Isenberg, Senior Member        

DECISION UNDER REVIEW

1.      The Applicant (“Mr Holmes”) seeks review of a decision made by Centrelink on 21 June 2005, to commence disability support pension (“DSP”) payments from 12 May 2005, and not an earlier date. This decision was affirmed by an Authorised Review Officer (“ARO”) on 8 August 2006, and the Social Security Appeals Tribunal (“SSAT”) on 6 February 2007.

BACKGROUND

2.      Mr Holmes is an Australian citizen who lived in Thailand for a period between May 2001 and May 2005. Until his return to Australia on 11 May 2005, he had last visited Australia for a couple of weeks in 2001.  On 24 February 2004, whilst living in Thailand, Mr Holmes was diagnosed with carcinoma of the right tonsil.

3.      On 17 March 2004, Mr Holmes contacted Centrelink to enquire about DSP. Centrelink records noted that Mr Holmes was currently living in Thailand, and advised that he would probably not be eligible for DSP. However, in order for Mr Holmes to test his eligibility, Centrelink sent him the DSP claim forms to complete.

4.      On 2 April 2004, Mr Holmes again contacted Centrelink to advise that he would be returning to Australia within six weeks, and would then lodge a claim for DSP.  On 15 June 2004, however, Mr Holmes advised Centrelink that he had just been discharged from hospital after undertaking chemotherapy, and was unable to return to Australia as he was too ill to travel.  During this conversation, Mr Holmes was informed by a Centrelink officer that he would need to be in Australia to lodge his claim. He was provided with the same advice when he made enquiries on 30 June 2004 and 20 July 2004.

5.      On 11 May 2005, Mr Holmes returned to Australia from Thailand.  He attended a Centrelink Office at Leeton on the following day (12 May 2005), and during that visit indicated his intention to lodge a claim for DSP.  On 17 May 2005, Mr Holmes lodged a written claim for DSP. His application included a Treating Doctor’s Report (“TDR”) completed by his Thai oncologist, Dr Charuwan Akewanlop, on 21 May 2004.

6.      At Centrelink‘s request, Mr Holmes attended another doctor, and provided Centrelink with a TDR by Dr Gabriel Uyirwoth, completed on 18 May 2005.

7. Despite lodging a written claim for DSP on 17 May 2005, Mr Holmes’ claim was deemed to have been made on 12 May 2005, pursuant to section 13(1) of the Social Security (Administration) Act 1999 (“the Administration Act”). DSP was therefore granted with effect from 12 May 2005.

8.      Mr Holmes, however, requested that payments of DSP should be commenced from an earlier date than 12 May 2005, because his illness prevented him from returning to Australia any earlier to lodge his claim form.

9.      The decision not to backdate the DSP claim was affirmed by an ARO on 8 August 2006 and the SSAT on 6 February 2007.

ISSUE BEFORE THIS TRIBUNAL

10.     The issue before the Tribunal is whether the start date of Mr Holmes’ DSP can be an earlier date than 12 May 2005.

LEGISLATION

11.     The relevant legislation is contained within the Social Security Act 1991 (“the Act”) and the Administration Act.

12. Section 94 of the Act sets out the qualification criteria for DSP, and so far as is relevant provides:

94  Qualification for disability support pension

94(1)    A person is qualified for disability support pension if:

(a)the person has a physical, intellectual or psychiatric impairment; and

(b)the person’s impairment is of 20 points or more under the Impairment Tables; and

(c)       one of the following applies:

(i)        the person has a continuing inability to work;

(ii)       …

(d)       the person has turned 16; and

(e)       the person either:

(i)        …

(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii)      …

Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.

13. Section 7(2) of the Act defines an Australian resident as follows:

7(2)     An Australian resident is a person who:

(a)       resides in Australia; and

(b)       is one of the following:

(i)        an Australian citizen;

…

14. To be granted DSP, a claim must be made in accordance with section 11 of the Administration Act.

15.      The only way of making a claim is to lodge a written claim pursuant to sections 16(1) and (2) of the Administration Act.  Lodging a written claim is done by an approved form being delivered to a person and place approved by the Secretary: section 16(4) of the Administration Act.

16. Section 29(1) of the Administration Act also stipulates that a claim for a social security payment can only be made by a person who is an Australian resident and is in Australia. Any claim made whilst the claimant is not an Australian resident or not in Australia is “taken not to have been made” pursuant to section 29(2) of the Administration Act.

17. Once a valid claim has been made, and the claimant meets the qualification criteria, the social security payment start date is worked out in accordance with Schedule 2 of the Administration Act. Generally, the start date for payment is the day on which the claim is made: part 2 clause 3 in Schedule 2. Clause 11, however, provides an exception by making provision for an incapacitated claimant’s start date to be backdated, provided each of the following sub-elements are met:

11  Incapacitated claimant

…

(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.

18. Section 13 of the Administration Act also contains provisions which allow the start date to be backdated. Provided all the sub-sections in section 13(1) are satisfied, the date the Department was contacted about a claim for a social security payment is deemed to be the date the claim was made. Section 13 provides, so far as is relevant, that:

(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.

CONSIDERATION OF THE EVIDENCE

19.     In coming to the correct and preferable decision, I considered all the evidence, submissions, case law and relevant legislation.

20. Mr Holmes’ opening contention was that he was initially qualified for DSP, on 17 March 2004, when he first contacted Centrelink to make enquiries about receiving the benefit. He said that as of that date he met all the qualification requirements of section 94 of the Act, and was an Australian resident, but “just not living here”. He also said that he had 10 years qualifying residence, meeting the criteria in section 94(e)(ii) of the Act. Centrelink conceded that as Mr Holmes had previously resided here for a period that exceeded 10 years, he does have a qualifying residency which satisfies section 94(1)(e)(ii) of the Act.

21. It was Centrelink's position that Mr Holmes met all the components of subsection 13(1) of the Administration Act. Therefore, his claim was deemed to have been made on 12 May 2005, being the date that he first contacted Centrelink after his return to Australia. Centrelink also contended that whilst Mr Holmes may have met the qualification criteria outlined in section 94 of the Act prior to 12 May 2005, he was not competent to lodge a claim until he had physically returned to Australia as required by section 29(1)(b) of the Administration Act. It was Centrelink’s further contention that there are no discretionary provisions within the legislation that allow Mr Holmes to have been deemed to lodge a claim prior to his return to Australia.

22. Mr Holmes’ second contention was that whist he was qualified for DSP on the date he first contacted Centrelink in March 2004, he was too ill to return to Australia at that time. Consequently, he was unable to lodge his application so as to receive the benefit of the “deemed lodgement” provisions in section 13 of the Administration Act. Instead, he referred to section 13(3A) of the Administration Act, which provides, so far as is relevant that:

…

(3A)     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 more than 14 days, but not more than 13 weeks, after the Department is contacted; and

(e)the Secretary is satisfied that, in the special circumstances of the case, it was not reasonably practicable for the person 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.

(4)       A reference in this section to the Department being contacted includes a reference to the Department being contacted by post or telephone or by the transmission of a message by the use of facsimile, computer equipment or other electronic means.

…

23. It was discussed at the hearing that Mr Holmes would need to satisfy all the requirements of section 13(3A). However, since he did not lodge a claim for DSP within 13 weeks after the Department was contacted, he could not receive the benefit of the backdating provisions in section 13(3A).

24. Mr Holmes’ finally relied on clause 11 in Schedule 2 of the Administration Act. If Mr Holmes’ incapacity for work began more than five weeks before his claim was made, clause 11(2) allows a claim to be backdated for a maximum of four weeks, provided that the sole or principal reason for the late application was the medical reason itself.

25. It is important to note, at this point, that the effect of section 13 is to modify the date a person is taken to have made a claim for social security payment, from the date of lodging the written application to the date the Department was contacted about a claim. As section 13 applies, the date on which Mr Holmes’ claim was made becomes the date when the “Department was contacted” upon his arrival in Australia. By reading section 13 together with clause 11, it necessarily follows that if clause 11 applies, Mr Holmes’ entitlement could be backdated to four weeks before his claim was made i.e. four weeks before he first contacted the Department about a claim, namely 12 May 2005. This approach was also adopted by the Tribunal in Dellaportas and Secretary, Department of Family and Community Services [2001] AATA 837.

26. In relation to clause 11(2), Centrelink initially submitted that Mr Holmes could never receive its benefit. Although he met the criteria for the DSP before his return to Australia, he was not “competent” to make a claim as he was not in Australia. In my view, however, this is not the correct reading of clause 11(2).

27.     The SSAT, in its decision, found that Mr Holmes could not receive the benefit of the incapacitated claimant provisions because he was not qualified for DSP in the four weeks before he claimed, “simply because he was not present in Australia.” Centrelink’s written submission, however, stated that the requirement in section 29(1) of the Administration Act that requires Mr Holmes to be in Australia to make a claim, does not prevent a finding that he was qualified for DSP, provided that the qualification criteria are met. Therefore, in my opinion, the SSAT was incorrect. Mr Holmes was in fact qualified under section 94 of the Act, and this qualification was not affected by the fact that he was in Thailand four weeks before the claim was made.

28. With the exception of clause 11(2)(c), Centrelink conceded that Mr Holmes met all the requirements of clause 11(2). The only remaining issue, therefore, is whether Mr Holmes’ medical condition was the sole or principal cause of his failure to make the claim within five weeks after the day on which the incapacity began.

29.     Centrelink contended that whilst his medical condition was a contributing cause, he was also delayed in returning to Australia because of other reasons, including difficulties in obtaining a visa for his partner.  I note, however, that this did not become an issue until late 2004, a long time after his diagnosis, and while he was still undergoing treatment for cancer. 

30.     Centrelink also contended that Mr Holmes’ return to Australia was delayed by complications he suffered from Post Traumatic Stress Disorder after being exposed to the Boxing Day Tsunami in 2004. This also occurred many months after his initial diagnosis, and again while he was still undergoing treatment.

31.     At the resumed hearing, Mr Holmes gave detailed evidence about his cancer treatment.  He said that he had two sessions of chemotherapy, which required hospitalisation for about two weeks per session, and that his course of radiation took place over several months.  The radiation treatment did not conclude until early 2005.  After conclusion of his treatment, Mr Holmes said that he was still attending the hospital to test the success, or otherwise, of the treatment. He was also required to attend the hospital for regular “weigh-ins” as he had suffered severe weight loss from the treatment. On his evidence, other debilitating side effects of the treatment included severe fatigue, anorexia and weight loss, a very dry mouth and severe pain in the neck.  All his teeth were removed to prepare for the radiation treatment, and his dentures were only fitted a couple of days before his return to Australia.

32. I accept that Mr Holmes met all the elements of clause 11(2). For the reasons outlined above, I also accept that the principal reason for Mr Holmes’ failure to make the claim within five weeks after the day on which the incapacity began was his medical condition.

33.     Therefore, given that Centrelink accepted that Mr Holmes’ claim was made on 12 May 2005, I find that the start day of Mr Holmes’ DSP should be four weeks before his claim was made, namely 14 April 2005.

DECISION

34.     The decision under review is set aside, and in substitution therefor the Tribunal decides that the start date for payment of the Applicant’s disability support pension is 14 April 2005.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Naida Isenberg, Senior Member

Signed:         [Skye Owen]
  Associate

Date/s of Hearing  15 October 2007 and 1 November 2007
Date of Decision  30 November 2007
Counsel for the Applicant         Self-represented
Solicitor for the Applicant          Jillian Furner