JOEL ROBINSON and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2013] AATA 511
[2013] AATA 511
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0839
Re
JOEL ROBINSON
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 22 July 2013 Place Brisbane The Tribunal affirms the decision under review.
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Mr R G Kenny, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension - Calculation of start date – Claim form lodged more than 13 weeks of initial contact with Centrelink – No basis for a start date referable to date of that initial contact with Centrelink - Subsequent contact with Centrelink - Claim form lodged more than 14 days and within 13 weeks of that subsequent contact with Centrelink but lateness of claim not due to medical condition or special circumstances – No basis for a start date referable to date of that subsequent contact with Centrelink – Further contact with Centrelink - Start date referable to date of that further contact and not earlier - Decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth) s 23
Social Security (Administration) Act 1999 (Cth) ss 11, 13, 16, 42, Schedule 2
REASONS FOR DECISION
Mr R G Kenny, Senior Member
BACKGROUND
On 16 October 2009, Joel Robinson (the applicant) contacted Centrelink about his intention to claim the disability support pension which is payable under the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act1999 (Cth) (“the Administration Act”). On the same day, Centrelink provided the applicant with a claim form, which he completed on that day. Also on that day, Centrelink acknowledged in a letter to the applicant that he had made contact about the disability support pension.[1] The applicant again contacted Centrelink in relation to the claim on 4 January 2010 and lodged the previously completed claim form with Centrelink on 6 January 2010.[2] On 1 February 2010, Centrelink granted the claim with a start date of 4 January 2010.[3] That decision was affirmed by an authorised review officer on 28 September 2012,[4] and, in turn, by the Social Security Appeals Tribunal (SSAT) on 3 February 2013.[5]
[1] Exhibit 1 p 49.
[2] Exhibit 1 pp 50-73.
[3] Exhibit 1 pp 75-76.
[4] Exhibit 1 pp 85-87.
[5] Exhibit 1 pp 3-8.
LEGISLATION AND ISSUES
In order to be paid a social security payment,[6] a written claim must be lodged with Centrelink.[7] The start date for payment is usually the date of claim,[8] but an earlier date may be set in certain cases.
[6] As defined in s 23 of the Act to include the disability support pension.
[7] See ss 11 and 16 of the Administration Act.
[8] See s 42 and cl 3 Sch 2 of the Administration Act.
One such case is where contact was made with Centrelink about a claim for a social security payment; the person was qualified for the payment on the date of contact; and a written claim is then lodged within 14 days.[9] In the decision under review, that was found to be applicable in the applicant’s case in that he contacted Centrelink on 4 January 2010 and lodged his claim two days later. The start date was determined to be 4 January 2010.
[9] See s 13(1) of the Administration Act.
Other cases where a start date earlier than the lodgement date may be determined are set out in s 13 of the Administration Act. Of potential relevance in this matter are s 13(2) and s 13(3A) which read:
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 claim on the day on which the Department was contacted.
13(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.
In the decision under review, those grounds were considered but found not to be applicable in the applicant’s situation. I have considered those matters below.
Mr Rick McQuinlan, for the respondent, submitted that no claim for disability support pension had been made by the applicant before 6 January 2010 and that the earliest possible start date for payment was 4 January 2010, when he contacted Centrelink about the claim. While conceding that the claim form had been completed by the applicant on 16 October 2009, he submitted that this claim form had not been lodged with Centrelink until 6 January 2010 and that the earliest start date for the applicant’s payments was the one calculated by Centrelink. He submitted that the decision under review ought be affirmed.
EVIDENCE
The applicant
The applicant gave the following evidence. In September 2007, he was in the Gold Coast Hospital psychiatric ward as an involuntary patient. There, he spoke with a Centrelink officer who was based at the hospital about making a claim for the disability support pension. The Centrelink officer advised him that he was not eligible for the payment as he was from New Zealand and did not meet Australian residential requirements. He learned, in 2010, that this was incorrect advice which was given in ignorance of reciprocal social security arrangements between Australia and New Zealand in relation to such payments. As a result of his not receiving payments from Centrelink from that time, his mother and sister incurred significant expense in providing for his needs. He submitted that he was entitled to receive the disability support pension from September 2007 because of the contact he made with Centrelink at that time.
An alternative start date was also identified by the applicant as being 16 October 2009. He referred to the claim form he completed on that date. It was this document which was treated by Centrelink as being lodged by him on 6 January 2010. However, the applicant said that he had lodged it with Centrelink on 16 October 2009 and submitted that this should be considered to be the start date for his disability support pension payments. He said that the claim form was returned to him in a letter by Centrelink some days after he lodged it. This was either in October or November 2009. He said that the letter noted the references to his medication listed in the claim form and included a request that he provide, from his medical practitioner, updated evidence about his medication regimen.
Centrelink records
Centrelink has no record of contact about disability support pension by the applicant in 2007. There is a record in Centrelink files of the contact made by the applicant on 16 October 2009 and of a letter sent to the applicant on that date. That letter acknowledged the applicant’s contact about his intention to lodge a claim and invited him to seek further information if he needed it. There is no record of lodgement of a claim form in relation to disability support pension before 6 January 2010. That is the document completed by the applicant on 16 October 2010 and this bears a Centrelink stamp as having been received on 6 January 2010. There is no record of a Centrelink letter in October or November 2009 to the applicant requesting further information about his medication. However, there is such a letter, dated 8 January 2010. This was two days after his claim from was lodged on 6 January 2010.
Medical evidence
The applicant’s treating doctor, Dr George Bertsos, completed a medical report, dated 4 January 2010, in support of the applicant’s claim for disability support pension. He noted that the applicant had been his patient since 2002. The report was received by Centrelink on 6 January 2010. Dr Bertsos identified the applicant as suffering from schizophrenia. He wrote that the date of onset was 27 August 2007 when the applicant experienced an acute episode of the condition. He noted the medication taken by the applicant and described as “nil” the impact on the applicant’s ability to function in the following matters: sitting/standing, endurance, communication, cognitive function, self care, activities of daily living, need for high levels of care and adverse effects of treatment.
Job capacity assessment (JCA) report
The JCA report was based on an assessment on 22 January 2010 by a psychologist. It refers to the applicant as suffering from schizophrenia and identifies the functional impairment of that condition as including the experiencing of paranoid delusions, cognitive disturbance, some difficulty with concentration and remaining task focussed. However, the reporter described his condition as fluctuating and noted that he had implemented good lifestyle habits and had a good network of social supports.
CONSIDERATION
On the first day of the hearing, the applicant was granted an adjournment to enable him to search for the letter he said that he received after lodging the claim form on 16 October 2010. He believed he had retained it in his records at his home address. At the resumed hearing, the applicant advised that he was unable to locate the letter. On the first day of the hearing, the applicant conceded that he may have been confused in his recollection about the dates on which he received Centrelink material and, on the second day, he confirmed that this was possible. That may well be an explanation for his belief that he lodged a claim in October 2009 and received a letter from Centrelink shortly afterwards.
I accept the Centrelink records as accurately reflecting receipt of the claim form on 6 January 2010. In that regard, the letter of 8 January 2010 is in the terms attributed by the applicant to a letter described by him as being received in October or November 2009. That letter can not be found by the applicant and is not recorded in Centrelink documentation. Neither is there a record of Centrelink receiving a claim form on 16 October 2009. I am satisfied that no claim for disability support pension was made by the applicant before 6 January 2010. This resulted in the grant of the payment to the applicant from 4 January 2010 when he again contacted Centrelink about the disability support pension.
The applicant referred to events that occurred in 2007 in a hospital setting where a Centrelink officer provided him with incorrect information. Unfortunately, no claim was made by him for disability support pension at that time or for more than two years. The terms of s 13(2) and s 13(3A) of the Administration Act require that a claim be made within 13 weeks of contact with Centrelink and, accordingly, the claim does not fall within the ambit of those provisions.
The claim on 6 January 2010 was made within 13 weeks of the contact by the applicant with Centrelink on 16 October 2009. As noted above, Centrelink acknowledged that contact in writing. It is not in dispute that the applicant would have met the requirements of the disability support pension at that time and, accordingly, the terms of s 13(2)(a) – (d) and of s 13(3A)(a) – (d) of the Administration Act are met by the applicant.
Clearly, the applicant suffers from a medical condition. There is some inconsistency between the report of Dr Bertsos and that of the JCA reporter about the extent that his schizophrenia impacts upon him. That is the case even though they were prepared within a period of 18 days. Dr Bertsos has treated the applicant since 2002 and, to the extent of any inconsistency, I prefer his report over that of the psychologist. This has relevance for the application of s 13(2)(e) of the Administration Act as the absence of limitation in the applicant’s level of functioning as described by Dr Bertsos leaves me satisfied that the applicant’s medical condition did not have a significant adverse effect on his ability to lodge the claim earlier than 6 January 2010.
No assistance is given in the social security legislation in relation to the meaning of special circumstances. The concept arises in other parts of the Act and the Administration Act and, in Groth v Secretary, Department of Social Security,[10] Kiefel J observed that special circumstances:
“would require something to distinguish ... [the] ... case from others, to take it out of the usual or ordinary case … It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary”.[11]
[10] Groth v Secretary, Department of Social Security (1995) 40 ALD 541.
[11] Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545.
I am satisfied that the applicant’s medical condition should not be considered as a special circumstance because of the specific reference to this in s 13(2) of the Administration Act. No other matters have been raised by the applicant and I am satisfied that there are no special circumstances by which it was not reasonably practicable for the applicant to lodge the claim before 6 January 2010.
Neither s 13(2) nor s 13(3A) of the Administration Act are applicable in this matter. Unfortunately, no discretion is otherwise provided in the relevant legislation to enable an earlier start date in this case than 4 January 2010.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
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Associate
Dated 22 July 2013
Dates of hearing 4 June 2013 and 10 July 2013 Applicant In person Advocate for the Respondent Rick McQuinlan, Departmental Advocate
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