JOHN CHARLES DANGERFIELD and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 457

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 457

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/6190

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN CHARLES DANGERFIELD

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date24 June 2009

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

J G SHORT
  (Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Disability Support Pension  – commencement date – special circumstances – decision affirmed

Social Security (Administration) Act 1999 ss 13(1), 13(2), 13(3A), 41, 42

Re Beadle and Director-General of Social Security (1994) 6 ALD 1  

REASONS FOR DECISION

24 June 2009   Mr J G Short (Member)  

introduction

1.      The decision under review is a decision made by Centrelink on 30 September 2008 to commence Mr Dangerfield’s entitlement to payment (after a one week waiting period) from 30 September 2008 rather than an earlier date.  This decision was affirmed by the Social Security Appeals Tribunal (the SSAT) on 1 December 2008.

2.      On 25 August 2008 Mr Dangerfield contacted Centrelink in respect of a claim for Disability Support Pension (DSP).  Under cover of a letter also dated 25 August 2008, Mr Dangerfield was sent a DSP claim form, together with a treating doctor’s report form.  The covering letter (T9/28) advised Mr Dangerfield that if he could not return all the documentation asked for by 8 September 2008, he should contact Centrelink immediately.

3.      Mr Dangerfield eventually lodged his written claim form and supporting documentation on 30 September 2008 and, after the imposition of a one week waiting period, Mr Dangerfield was paid with effect from 8 October 2008.

issues

4.      The issue before me is whether circumstances exist in this case which would allow Mr Dangerfield’s pension payments to be backdated to the date of his first contact on 25 August 2008.

legislation

5. Sections 41 and 42 of the Social Security (Administration) Act 1999 (the Administration Act) combine to provide that a person’s start date for payment is determined under Schedule 2 of that Act. Under clause 3 of Schedule 2, a person’s start date, assuming that the person is qualified for payment on the day on which a claim is made, is the day on which the claim is made. In this case, 30 September 2008.

6. In some circumstances, an earlier start date for payment may be applicable. Section 13(1) of the Administration Act provides for an earlier date of payment if a person lodges his claim for a Social Security payment within 14 days after the initial contact date. In this case, it is common ground that Mr Dangerfield did not lodge his claim for payment until 30 September 2008, that is more than four weeks after his initial contact.

7. Section 13(2) of the Administration Act provides as follows:

“13       Deemed claim—person contacting Department about a claim for a social security payment

…

(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.”

8.      The respondent (the Department) conceded that Mr Dangerfield’s circumstances met sub-paragraphs 13(2)(a), (b), (c) and (d).  The Department argued that Mr Dangerfield’s circumstances did not match sub-paragraph (e) in that although he was suffering from a medical condition, that condition or the circumstances relating to that condition did not have a significant adverse effect on his ability to lodge the claim earlier.  Mr Dangerfield’s medical condition was stated to be a problem with his fine motor skills in his hands, most likely from an entrapment of a nerve, either at his wrists or elbows.  Mr Dangerfield did not contend that this medical condition prevented him from lodging his claim within 14 days of his first contact and the Tribunal so finds. 

9. Section 13(3A) of the Administration Act provides as follows:

“(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.”

10.     The Department conceded, and this Tribunal finds, that Mr Dangerfield’s circumstances satisfy sub-paragraphs 13(3A)(a), (b), (c) and (d). 

11.     Mr Dangerfield suggested that his circumstances also fall within the scope of sub-paragraph (e) in that special circumstances existed which meant that “it was not reasonably practicable for the person to lodge the claim earlier”.

mr dangerfield’s evidence

12.     Mr Dangerfield adopted as accurate the evidence he provided at the SSAT hearing on 1 December 2008 and summarised in paragraph 8 of the SSAT’s reasons for decision.  This clause reads as follows:

“8.       Mr Dangerfield spoke to the Tribunal and the following is a summary of the information provided:

·He was a miner at Coober Pedy for some years but had to give this work up because of injuries to his hands.

·He had therefore moved to Port Pirie to be closer to medical services.

·After he contacted Centrelink and obtained the paperwork from them he organised to see the doctor but there were delays as the doctor wanted X rays done before he could complete the DSP form.

·Centrelink required his birth certificate as proof of identity which he was unable to find at home in Port Pirie.  He realised it was in Coober Pedy locked in a safe with other personal items which only he could open and decided he would need to go to Coober Pedy to get it.

·Before going to Coober Pedy he phoned Centrelink and asked what would happen if he did not lodge the claim until after 8 September 2008 and he was told he would have to commence the claim again.  He said that he thought he would put up with this and sort it out later.

·He did not think of obtaining a copy from the local births, deaths and marriages office at Port Pirie.

·He went to Coober Pedy and retrieved his birth certificate.  The round trip took him about 4-5 days.  He then lodged his claim at the Port Pirie Centrelink office and payment commenced from 30 September 2008.

·He said he had delayed in lodging his claim because he had to obtain the necessary medical information which required him to see doctors which took some time and the need to obtain his birth certificate from Coober Pedy.  There were no other reasons for the delay in lodgement.”

13.     Mr Dangerfield elaborated on the evidence recorded by the SSAT.  He said that he had to give up work because of injuries to his hands, but that this also involved an entrapment of nerves at his elbows.  Mr Dangerfield also said that in addition to his local medical officer requiring x-rays before completing the treating doctor’s report form, the treating doctor also wanted to send Mr Dangerfield to consult a neurologist. 

14.     Mr Dangerfield said that he could not recall the date upon which he attempted to make a general enquiry of Centrelink as to what would happen if he did not lodge his claim form within the prescribed 14 day period.  Mr Dangerfield said that he did not use his name when making the enquiry, it was a general enquiry and no receipt number was asked for or provided.  He said that he had been told that if he did not lodge his claim form within time, time would start again.

15.     Mr Dangerfield said that costs were incurred in travelling from Port Pirie to Coober Pedy to pick up a copy of his birth certificate and that if he were able to receive a back payment of his now DSP, it would go some way towards reimbursing him for the funds spent in collecting his birth certificate.

16.     Mr Dangerfield said that he did not appreciate how important the time limits were in reference to lodging his claim.  He said that he thought that he had to obtain his paperwork before he could lodge his claim.

17.     Mr Dangerfield said that he continues to reside in Port Pirie.  He does not have to pay rent or a mortgage, but does pay the usual costs of living and through economising, manages to get by on his DSP.

consideration

18. The Tribunal first considered whether Mr Dangerfield’s claim for DSP could be backdated pursuant to s 13(1) of the Administration Act. The Tribunal concluded that this section did not apply in Mr Dangerfield’s circumstances as he did not manage to lodge his claim within 14 days of first contacting the Department.

19. The Tribunal then considered s 13(2) of the Administration Act, but concluded that Mr Dangerfield’s medical condition, that is an entrapment of nerves affecting fine digital motor skills or the circumstances relating to that condition, did not have a significant adverse effect on his ability to lodge his claim form earlier. Section 13(2) was not satisfied.

20. The Tribunal was finally left to consider the effect of s 13(3A) of the Administration Act and in particular whether Mr Dangerfield’s circumstances satisfied the Tribunal “in the special circumstances of the case, it was not reasonably practicable for the person to lodge the claim earlier”.

21.     Mr Dangerfield said that he had to collect a copy of his birth certificate and had to travel to Coober Pedy to do so.  He also said that his local medical officer required further documentation before he could complete the treating doctor’s report.

22.     At the Tribunal’s request, the Department obtained and tendered a copy of Mr Dangerfield’s claim for DSP (Exhibit R1).  On the final page of that claim form under the heading “Go to your medical appointment” is the following comment made in bold print “If you cannot get an appointment with the doctor within 14 days do not delay returning your forms.  You can return the report/certificate later.”  This form makes it clear that Mr Dangerfield could have lodged his claim form within the prescribed period and provided the supporting documentation at a later time.  Mr Dangerfield appears not to have appreciated this point and his general enquiry to Centrelink did not acquaint him with this possibility.

23.     The Tribunal was left to consider whether Mr Dangerfield’s circumstances could be considered special in that it was not reasonably practicable for Mr Dangerfield to lodge his claim earlier.  In Re Beadle and Director-General of Social Security (1984) 6 ALD 1, it was explained that for circumstances to be considered special they must be “unusual, uncommon or exceptional” when compared to those in other cases. The Tribunal considers that it is not unusual for people not to be able to provide all of the requested documentation within 14 days. The claim form anticipates this and indicates that the claim form may be lodged without the supporting documentation. The Tribunal considers that there is nothing special or unusual arising out of Mr Dangerfield’s circumstances which would warrant the beneficial application of s 13(3A) of the Administration Act and in these circumstances the decision under review is affirmed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)

Signed:         .....................................................................................
           BJ Bills  Admin Assistant

Date of Hearing  18 May 2009
Date of Decision  24 June 2009
Advocate for the Applicant       Self-represented

Advocate for the Respondent   Mr A Parker
  Centrelink Legal Services and Procurement             Branch