Kormali and Secretary, Department of Social Services (Social services second review)

[2016] AATA 734

Kormali and Secretary, Department of Social Services (Social services second review) [2016] AATA 734 (23 September 2016)

Division	GENERAL DIVISION
File Number(s)	2015/5493
Re	Mesut Kormali
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A Poljak
Date	23 September 2016
Place	Sydney

The Tribunal affirms the decision under review.

..................................[sgd]......................................

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY - disability support pension - start date - whether pension should be payable from a date before the date of claim - decision under review affirmed

LEGISLATION

Social Security Act 1991 s 94

Social Security (Administration) Act ss 11, 13, 42 Sch 2

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work- Related Impairment for Disability Support Pension Pension) Determination 2011

REASONS FOR DECISION

Senior Member A Poljak

23 September 2016

1. Mr Kormali suffers from a psychiatric condition and is currently in receipt of Disability Support Pension (“DSP”). His application for DSP was lodged on 7 April 2015 (“date of claim”) and was accepted on 8 May 2015.

2. Mr Kormali seeks review of the decision by the Social Services & Child Support Division of the Administrative Appeals Tribunal (“SSCSD”) made on 7 October 2015 affirming the decision of the Department of Human Services (“the Department’) to pay Mr Kormali DSP from 7 April 2015 and not from an earlier date.

3. The issue in these proceedings is whether DSP should be payable from a day before the date of claim.

4. Due to Mr Kormali’s psychiatric condition, he was represented at hearing by Mrs Kormali.

5. It is Mr Kormali’s contention that in light of the report of Dr Malik, dated 20 April 2014, he was eligible for DSP as at 20 April 2014 and accordingly his payments should be backdated to that date. This however would be inconsistent with Social Security Law.

6. Mr Kormali may very well have satisfied the eligibility criteria for DSP prior to the date of claim but his eligibility under s 94 of the Social Security Act 1991 (Cth) (“the Act”) was not tested until after he lodged his claim on 7 April 2015.

7. To qualify for DSP, s 94 of the Act provides that a person must have a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011 (“the Impairment Tables”); and have a continuing inability to work as defined in the Act.

8. As a general rule, pursuant to s 11 of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”), a claim for a social security payment must be made in accordance with Part 3, Division 1 of the Administration Act.

9. Rules for working out the start date for the payment of a social security pension are contained in Schedule 2 of the Administration Act (pursuant to s 42). Clause 3 provides that as a general rule, the start day of the payment is on the date the claim is made. Accordingly, Mr Kormali had to satisfy eligibility criteria contained in s 94 of the Act on 7 April 2015, when he applied for DSP, or within the following 13 weeks, that is, by 7 July 2015 (“the relevant period”).

10. Section 13 of the Administration Act provides an exception to the general rule. Namely that the date a claim is deemed to have been made is taken to have been made on the day the Department was first contacted if, a person, or someone on their behalf, contacts the Department about claiming a payment, the person qualified for the payment at that time, and the person lodged a claim within 14 days of receiving written notice from the Department acknowledging the earlier contact. This did not occur here.

11. Although Mr Kormali lodged a previous claim for DSP in 2012, that claim was ultimately refused and finalised. In these proceedings, the only relevant claim is the one lodged on 7 April 2015. There is no evidence before me that Mr Kormali contacted the department prior to the date of claim.

12. The Tribunal has no discretion simply to determine what it believes would be fair in all the circumstances. It is required by law to interpret and apply the relevant legislation as enacted by the Australian Parliament.

    DECISION

13. For the reasons given above, the decision under review is affirmed.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

......................[sgd]..................................................

Associate

Dated 23 September 2016

Date(s) of hearing	1 September 2016
Advocate for the Applicant	N Kormali (by phone)
Solicitors for the Joined Party	Department of Human Services