Krzywnicki and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 1179

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1179

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2207

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ASTRID KRZYWNICKI

Applicant

And SECRETARY, DEPT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal J. W. Constance, Senior Member

Date10 November 2008

PlaceCanberra

Decision The decision of the Social Security Appeals Tribunal made 10 April 2008 that the start day for the Applicant’s disability support pension is 4 June 2007 is affirmed.

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

J. W. Constance, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – start day for pension – date of contacting Centrelink regarding pension – Date of claim more than 13 weeks after initial date of contact – start date for pension 4 weeks prior to date of claim – decision under review affirmed

Social Security (Administration) Act 1999 (Cth) – Sections 11, 13, Schedule 3 Part 2 Clause 11

REASONS FOR DECISION

10 November 2008 J. W. Constance, Senior Member            

INTRODUCTION

1.      Ms Sadie Krzywnicki has applied for a review of a decision of the Social Security Appeals Tribunal on behalf of her daughter, Ms Astrid Krzywnicki.  In these Reasons I shall refer to Ms Sadie Krzywnicki as Ms Krzywnicki and Ms Astrid Krzywnicki as Astrid.

2.      This application was heard by me on 10 November 2008.  At the conclusion of the hearing I gave my reasons for my decision orally.  I now provide those reasons in writing.

3.      The decision under review is a decision that the start day for the Disability Support Pension to which Astrid is entitled is 4 June 2007.

4.      For the reasons which follow the decision under review will be affirmed.  In my view this is an unsatisfactory conclusion, but one which is required by the legislation.  I will deal further with this issue at the end of these Reasons for Decision. 

FACTS

5.      The facts of this matter are not in dispute and the parties were agreeable to my determining this application on the basis of the facts found by the Social Security Appeals Tribunal. On the basis of the evidence before me (which includes evidence by Ms Krzywnicki), I am satisfied that this is an appropriate way in which to proceed.  There is one variation of the facts found by the Social Security Appeals Tribunal.  I am satisfied Ms Krzywnicki first contacted Centrelink concerning an application for a Disability Support Pension for Astrid on 31 January 2007, rather than on 15 February 2007 as found by the Social Security Appeals Tribunal.

6.      The following is an extract from the findings of the Social Security Appeals Tribunal.

1.Miss Astrid Krzywnicki suffers from severe obsessive compulsive disorder (OCD). On 15 February 2007, her mother, Mrs Sadie Krzywnicki, contacted Centrelink on her behalf about making a claim for disability support pension. A letter was sent to Miss Krzywnicki on that date, acknowledging the contact and explaining, among other things, that if a claim was lodged by 1 March 2007, it could be paid from 15 February 2007 (the date of the initial contact).

2.On 28 February 2007, Mrs Krzywnicki contacted Centrelink to advise that there would be a delay in the lodgement of the claim as her daughter was in hospital and would be transferred to a psychiatric hospital in Melbourne. She also advised that her daughter was unable to sign the claim form. The Centrelink record shows that Mrs Krzywnicki was advised that the treating doctor may be able to sign the form. It was also noted that Mrs Krzywnicki should complete a nominee form.

3.On 4 June 2007, Mrs Krzywnicki lodged the forms to become her daughter’s nominee and the arrangements were confirmed in writing by Centrelink on that date. On 9 July 2007, Miss Krzywnicki lodged a claim for disability support pension at the Ringwood office of Centrelink. Her claim was subsequently granted from 9 July 2007.

4.Miss Krzywnicki/her mother sought a review of the decision to pay disability support pension from 9 July 2007 (and not an earlier date), on the basis that Mrs Krzywnicki had contacted Centrelink early in 2007 about her daughter making a claim for disability support pension and had again contacted to let them know that the claim would be delayed. On 19 October 2007, however, the original decision maker decided not to change the decision because, although Mrs Krzywnicki had contacted Centrelink on 28 February 2007, the claim was not lodged until 9 July 2007, outside the permissible 13 weeks.[1]

[1] T2 p. 8.

[…]

9.In relation to her contact with Centrelink on 15 February 2007, Mrs Krzywnicki said she did not recall it very well. She knows that she had been in contact with them early in the year on a number of occasions, but it was a very difficult time. Astrid had been in Melbourne in January 2007 […] and when she returned ‘she was a mess’. […] She had been unwell for more than a year at that stage, but her condition had deteriorated markedly while she was away. She had to be hospitalised […] On the next occasion she was admitted and was transferred to Maroondah Hospital, a psychiatric hospital in Melbourne.

10.Mrs Krzywnicki said she contacted Centrelink in early 2007 because Astrid turned 16 on 19 January 2007 and someone had advised her that it was ‘important for continuity’ that she make a claim. The original intention was to make a claim for youth allowance.

11.Mrs Krzywnicki recalled receiving the claim for disability support pension that was sent to her. It was received at about the time Astrid went to hospital. There were battles about where she would be transferred to. The doctor wanted to transfer her to Sydney, but this would have been very difficult for Mrs Krzywnicki who had no support there and no where to stay. She couldn’t get Astrid to sigh the forms for disability support pension. She couldn’t make any sense of what it was about and so wouldn’t sign. Mrs Krzywnicki spoke to the social worker at the hospital who she understood contacted Centrelink about the matter. Mrs Krzywnicki said she was never told that there was a timeframe for lodging the form when she spoke to Centrelink. The reference to lodging the claim within two weeks was all in the fine print. No reference was made at all to the 13 weeks for the lodgement of a claim in the case of illness until she had asked for the matter to be reviewed. Mrs Krzywnicki had been working on the assumption that Centrelink was aware of the situation, including that Astrid’s illness prevented her from signing the form, and that when the claim was finally lodged it would be backdated. […]

12.The Tribunal referred Mrs Krzywnicki to the letter of 15 February 2007, which referred to returning the form by 1 March 2007. She didn’t specifically recall the letter. She said it was one letter ‘in the midst of the worst of it’.[2]

[2] T2 p. 9.

[…]

15.Mrs Krzywnicki said that it wasn’t until June 2007, when she became Astrid’s nominee, that Astrid was able to sign the form. She wasn’t sure why a claim for disability support pension was not made at that time. She simply hadn’t appreciated what was necessary at the time. Astrid was unwell throughout.

[…]

19.The Tribunal also considered the following papers contained on the Centrelink file and computer record:

·     The ‘Claim for Payments for people with disabilities, illnesses or injuries’ form signed by Miss Krzywnicki and lodged at the Ringwood office of Centrelink on 9 July 2007.

·     […]

·     a Centrelink computer record, dated 31 January 2007, which records that Mrs Krzywnicki contacted on that date about a claim for disability support pension and was ‘assisted to complete form: DSP new claim for daughter – unable to create record for daughter Astrid due to not being able to separate records due to started activity’;[3]

[3] T2 p. 10.

·     a Centrelink computer record, dated 28 February 2007, which records that Mrs Krzywnicki contacted on that date about the delay in the lodgement of her daughter’s claim for disability support pension. It states: ‘Customer’s mother contacted to advise delay with lodgement as daughter Astrid is in hospital and will be transferred to Maroundah (sic) Psychiatric Hospital in Melbourne. The daughter is not able to sign claim form. SW advised mother that treating doctor may be able to sign on customer’s behalf. Mother should complete nominee form also’. A handwritten note on the printout of this record, possibly made by the original decision maker or the authorised review officer, notes that ‘the advice the mother should have been advised to get letter from Astrid’s doctor say she is unable to sign and go down the nominee avenue’;

·     the letter, dated 15 February 2007, to Miss Krzywnicki which confirms that Centrelink was contacted on that date about her intention to claim a payment. The letter also states that if a completed claim is returned on or before 1 March 2007, the contact date will be used as the day on which the claim was made. It also says ‘please contact Centrelink immediately if you have any difficulty in returning your claim by the required date’; and

·     the letter, dated 4 June 2007, to Miss Krzywnicki which confirms that in response to her request Centrelink had appointed Mrs Sadie Anne Krzywnicki as her correspondence nominee.[4]

[4] T2 p. 11.

[…]

26.On the basis of evidence presented at the hearing and documents on the Centrelink file, the Tribunal made the following findings:

·     […]

·     Miss Krzywnicki lodged a claim for disability support pension at the Ringwood office of Centrelink on 9 July 2007 and it was subsequently granted from that date.[5]

[5] T2 p. 13.

STATUTORY BACKGROUND

7. A person wanting to be granted a social security payment must make a claim under s 11(1) of the Social Security (Administration) Act 1999 (Cth).

8.      Subsection 13(2) of the Act provides:

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.

REASONING

9.      Under s13(2) a person claiming a payment may be taken to have made a claim on the day he or she contacted the Department concerning the claim, provided the claim was made within 13 weeks of that contact.  Had Ms Krzywnicki lodged a claim on behalf of Astrid within 13 weeks after 31 January 2007, it is likely that Astrid would have been entitled to the benefit of this section and would have received the pension from 31 January 2007.  Unfortunately this did not happen.  In saying this I do not intend to criticize the actions of Ms Krzywnicki in any way.  She was acting in extremely difficult circumstances.

10.     There is no provision enabling me to extend the 13 week period.  Under Schedule 2 Part 3 Clause 11 of the Act a claimant’s start day for a pension can be a date up to four weeks prior to the claim being lodged.  I am satisfied that, as the Social Security Appeals Tribunal decided, Astrid is entitled to the benefit of this clause and her start day is 4 June 2007.

DECISION

11.     The decision of the Social Security Appeals Tribunal made 10 April 2008 that the start day for Astrid’s disability support pension is 4 June 2007 is affirmed.

A MATTER FOR CONSIDERATION

12.     Like the Members of the Social Security Appeals Tribunal, I am concerned that Astrid has suffered a significant financial disadvantage.  This state of affairs did not arise as a result of any fault on her part. At the time she was a minor in serious ill-health, which prevented her looking after her own interests. She has lost the benefit of the pension for approximately four months.  This issue also concerns Ms Krzywnicki, who raised it with me directly.

13.     In its decision, the Social Security Appeals Tribunal suggested that consideration be given to compensating Astrid under the provisions of the Compensation for Detriment caused by Defective Administration Scheme.  I understand that this is being considered, but that when I heard this application in November 2008 a decision had not been made.

14.     In my view it would be appropriate for consideration to be given to amending the Social Security (Administration) Act 1999 to allow a decision-maker a discretion, in appropriate circumstances, to determine that the start date for a pension be a date not earlier than the first contact with Centrelink in relation to that pension by or on behalf of a claimant.  This would allow a decision-maker to avoid the apparent injustice which has occurred in this case, particularly when the claimant is a minor and unable to look after his or her own interests.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of J. W. Constance, Senior Member.

Signed:         ...................[sgd].............................................................
  Tal Aviram, Associate

Date of Hearing  10 November 2008
Date of Decision  10 November 2008        
Advocate for the Applicant       Ms S. Krzywnicki             
Advocate for the Respondent   Ms M. Welfare, Centrelink Legal Services