LESCHINSKY And SECRETARY,DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

[2004] AATA 1335

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1335

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/316

GENERAL ADMINISTRATIVE  DIVISION

Re:         SOLOMON LESCHINSKY

Applicant

And:SECRETARY,

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             15 December 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
  Member

SOCIAL SECURITY ‑ disability support pension ‑ start date ‑ treatment of compensation payments as direct deduction

Social Security Act 1991 ss 99, 100(1), 106, 107, 108, 1168, 1173

Social Security (Administration) Act 1999 s 109(2)

REASONS FOR DECISION

15 December 2004  G.D. Friedman, Member

1.      This is an application by Solomon Leschinsky (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 14 February 2004.  The SSAT affirmed a decision of a delegate of the Secretary to the Department of Family and Community Services (the respondent) dated 24 July 1998 (a) to pay disability support pension (DSP) to the applicant from 11 June 1998 and not from an earlier date and (b) not to change the way the applicant’s compensation payments are treated for the purposes of his DSP.

2.      At the hearing on 16 August 2004 and 8 December 2004 the applicant represented himself, with the assistance of an interpreter in the Russian language. Mr S. Meehan, a Centrelink advocate, represented the respondent on 16 August 2004.  Ms K. Navarro, a Centrelink advocate, represented the respondent on 8 December 2004.

3.      The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T57) plus three exhibits (Exhibits A1‑A3) lodged by the applicant and two exhibits (Exhibits R1‑R2) lodged by the respondent.

BACKGROUND

4.      The applicant was born on 16 May 1938 in the USSR.  On 14 June 1996 he arrived in Australia as an immigrant from Israel.  On 6 November 1996 he suffered injuries in a workplace accident.  On 2 June 1998 he lodged an application for DSP, and on 24 July 1998 he was granted DSP from the date of his claim.  Centrelink calculated his rate of DSP, taking into account his weekly payments of about $30 under worker’s compensation which were deducted from his DSP.  When the applicant reached the age of 65, on 16 May 2003, the compensation payments stopped and the deductions from his DSP ceased.  On 3 October 2003 an authorised review officer affirmed the decision of 24 July 1998.

5.      On 12 December 2003 the applicant sought review of the decision by the SSAT.  On 14 February 2004 the SSAT affirmed the decision.  The applicant lodged an application with the Tribunal on 5 March 2004 for review of the SSAT decision.

6.      The issues before the Tribunal are the start date for the payment of DSP and treatment of compensation payments in the calculation of DSP.   

EVIDENCE

7.      In oral evidence the applicant said that after sustaining injuries in the workplace accident he attended the Centrelink office in St. Kilda in December 1996. There he was informed that he was not eligible to apply for DSP for two years after his arrival in Australia because he was an immigrant subject to an Assurance of Support.  The applicant told the Tribunal that in fact he was entitled to DSP from the date of the workplace accident.

8.      The applicant said that he relied on the advice from Centrelink and lodged his claim for DSP on 2 June 1998 when he had been in Australia for two years.  He emphasised that he and his wife should not be penalised for incorrect advice given to them by Centrelink.  He stated that at the time he first approached Centrelink there was no interpreter present, but he had understood the information provided by the Centrelink officer.  He said that he had produced documents concerning his medical condition, but he did not complete the application form for DSP at that time.

9.      The applicant told the Tribunal that on 26 February 2004 he lodged a Claim for Detriment Caused by Defective Administration with Centrelink, but on 22 March 2004 Centrelink informed him that his claim had been refused.  He stated that his solicitor had requested Centrelink to reconsider the matter, as the Commonwealth Ombudsman had no power to overturn the decision, but that no reconsideration appears to have occurred.

10.     The applicant produced a document dated 22 January 2003 (Exhibit A1) from his former employer, showing the amounts of compensation paid to the applicant between 29 June 2000 and 2 December 2002.  He told the Tribunal that the amounts received were less than the amounts used by Centrelink in calculating his DSP payments, and that Centrelink was in error because the employer based its calculations on the number of working days, while Centrelink took public holidays and weekends into account.

11.     Under cross‑examination the applicant stated that he did not advise Centrelink that he believed the calculations were incorrect until mid‑2002 because he was preoccupied with medical and other matters.

CONSIDERATION OF THE ISSUES

12.     The Social Security Act 1991 as at 1998 (the Act) set out the requirements for claiming DSP. The relevant provisions were repealed by Act N° 192 of 1999. Section 99 of the Act provided that DSP is not payable before the person’s provisional commencement day, which was defined in s 100(1) of the Act as the day on which a person applies for DSP. Section 106(1) provided that a claim must be a proper claim for the pension sought, and must be in writing in the approved form (s 107). Section 108 required the form to be lodged in an office of the respondent or in a place or with a person approved by the respondent.

13. Ms Navarro submitted that prior to 2 December 1998 the applicant had not lodged a claim for DSP in accordance with the requirements set out in the Act. Therefore, payment could not commence before this date. She said that under s 109(2) of the Social Security (Administration) Act 1999 if (a) a decision is made in relation to a person’s social security payment; and (b) a notice is given to the person informing the person of that decision; and (c) more than 13 weeks after the notice is given, the person applies to the respondent for review of the original decision; and (d) a favourable determination is made as a result of the application for review, the favourable determination takes effect on the day on which the application for review was made.

14. In respect of the calculation of the amount of DSP, as at June 1998 s 1168 of the Act provided that if a partnered person received periodic compensation payments and the person received or claimed a compensation affected payment and was not, at the time of the event that gave rise to an entitlement to compensation, receiving a compensation payment, then the rate of payment should be reduced by half of the amount of compensation received and the partner’s rate is reduced by half of the amount of compensation received.

15. From 20 September 2001 s 1173 of the Act provided that a person’s rate of payment was reduced by the full amount of compensation received, and the partner’s rate was not affected.

16.     Ms Navarro submitted that the applicant’s rate of DSP was calculated correctly in accordance with the Act.  She referred to documents provided by the applicant’s workcover provider (Exhibit R2) and noted that Centrelink assessed the applicant using a weekly payment of between $32 and $34, which included public holidays but not weekends.

17.     In reaching its decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing. 

18.     The Tribunal finds that the applicant lodged a claim for DSP with Centrelink on 2 June 1998.  The Tribunal notes that the applicant acted in the belief that he was not entitled to apply for DSP until he lodged the application two years after his arrival in Australia.  However, the Tribunal accepts the submission from Ms Navarro that under the provisions of the Act the applicant’s payments for DSP could not commence earlier than the date of lodgement of the application, and that he was not entitled to payments before that date.

19.     The Tribunal finds that the applicant was not receiving a compensation affected payment when he sustained injuries in November 1996.  After examining relevant documents including information provided by the applicant’s workcover provider, the Tribunal is satisfied that weekly amounts of approximately $33 were deducted appropriately from the applicant’s DSP payments during the relevant period.  The Tribunal concludes that the calculations took into account all relevant payments, including payments received for public holidays.  As the calculations were accurate the Tribunal finds that the applicant’s DSP payments were reduced correctly by the amount he received in weekly compensation payments at the relevant time. 

DECISION

20.     The Tribunal affirms the decision under review.

I certify that the twenty [20] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Dates of hearing:  16 August 2004 and 8 December 2004

Date of decision:  15 December 2004
Advocate for applicant:                Self‑represented

Advocates for respondent:          Mr S. Meehan, Centrelink (16 August 2004)

Ms K. Navarro, Centrelink (8 December 2004)