Lipchick and Secretary, Department of Social Services (Social services second review) - [2018] AATA 1270

Lipchick and Secretary, Department of Social Services (Social services second review) [2018] AATA 1270 (11 May 2018)
Division:GENERAL DIVISION
File Number(s): 2017/3821
Re:Daryl Lipchick
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:R. Cameron, Senior Member
Date:11 May 2018
Place:Melbourne

The Tribunal affirms the decision under review.
........................................................................
Senior Member
SOCIAL SECURITY – Age pension – commencement of payments – whether Applicant correctly applied for Age pension – whether payments can be backdated – whether special circumstances prevented Applicant from lodging application before turning 65 – special circumstances not found – decision affirmed
Legislation
Social Security (Administration) Act 1999
Cases
Formosa v Secretary, Department of Social Security (1988) 81 ALR 687
Castleman v Department of Family & Community Services [2002] FCA 1019
Re Cobbin and Secretary, Department of Families, Housing, Community Services and indigenous affairs [2012] AATA 433
Dranichnikov v Centrelink (2003) 75 ALD 134
Re Beadle v Director – General of Social Security (1984) 6 ALD 1
Re Papageorgiou and Secretary Department of Family and Community Services [2005] AATA 465
REASONS FOR DECISION
R. CAMERON, SENIOR MEMBER
11 May 2018
THE APPLICATION AND ITS HISTORY

The Applicant Daryl Lipchick is the recipient of an age pension and has received such payments from 30 May 2016.[1] He contends that it should be backdated to the date of his 65^th birthday on 15 January 2015.[2]
[1] He lodged a claim for an age pension on that date it was subsequently granted on 21 September 2016 with effect from 30 May 2016. Document T3 of the T documents.
[2] This claim is made in, amongst other places, the Applicant’s letter to the Department of Human Services dated 10 October 2016. Document T5 page 19 of the T documents.
After a request for a review by the Applicant of the original decision not to backdate the age pension from the date of his 65^th birthday on 15 January 2015 a departmental authorised review officer affirmed the original decision.[3]
[3] Document T8 pages 23 – 24 of the T documents.
The Social Services and Child Support Division of this Tribunal on 7 June 2017 affirmed the decision under review not to backdate the Applicant’s age pension from the date of his 65^th birthday.[4] From that decision on 30 June 2017 the Applicant requested a further review by the General Division of this Tribunal.
[4] Document T2 of the T documents.
RELEVANT LEGISLATION
There are several sections of the Social Security Act 1991 (“the Act”) and the Social Security (Administration) Act 1999 (“the Administration Act”) which are applicable in any consideration of an application such as this.
For ease of understanding it is useful to reproduce the relevant parts of those sections in these reasons.
11 General rule
(1) Subject to subsections (2) to (4) and Subdivision B, a person who wants to be granted:
(a) a social security payment; or
(b) a concession card;
must make a claim for the payment or card in accordance with this Division.
(2) Subsection (1) does not apply to a concession card for which a person is qualified under Division 1 of Part 2A.1 of the 1991 Act or under Subdivision A of Division 3 of that Part.
(3) Subsection (1) does not apply to a seniors health card that the Secretary must issue to a person under subsection 1061ZJA(3) or (4) of the 1991 Act.
…
Subdivision B—Cases where claim not necessary
12 Deemed claim in certain cases
(1) The Secretary may determine that, for the purposes of the social security law, a person is taken to have made a claim for an income support payment (the new payment), if:
(a) the person became qualified for the new payment while receiving another income support payment; or
(b) the person became qualified for the new payment immediately after ceasing to receive another income support payment.
…
13 Deemed claim—person contacting Department about a claim for a social security payment
(1) 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 within 14 days after the Department is contacted;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
(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.
(3) For the purposes of the social security law, if:
(a) the Department is contacted by or on behalf of a person (the claimant) in relation to a claim for a social security payment, other than crisis payment or special employment advance; and
(b) the claimant is, on the day on which the Department is contacted, qualified for the social security payment; and
(c) the Secretary gives the claimant a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d) the claimant 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 claimant lodged the claim, the claimant was caring for, or was the partner of, another person; and
(ii) throughout that period, the other person suffered from a medical condition; and
(iii) the medical condition, or circumstances related to the medical condition, from which the other person was suffering had a significant adverse effect on the claimant’s ability to lodge the claim earlier;
the claimant is taken to have made a claim for the social security payment on the day on which the Department was contacted.
(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.
15 Deemed claim—incorrect or inappropriate claims
(1) For the purposes of the social security law, if:
(a) a person makes an incorrect claim; and
(b) the person subsequently makes a claim for a social security payment for which the person is qualified; and
(c) the Secretary is satisfied that it is reasonable that this subsection be applied;
the person is taken to have made a claim for that social security payment on the day on which he or she made the incorrect claim.
(2) For the purposes of this section, a claim made by a person is an incorrect claim if:
(a) the claim is for a social security payment, other than a supplementary payment; and
(b) when the claim was made, the person was not qualified for the payment claimed but was qualified for another social security payment, other than a supplementary payment.
(3) For the purposes of this section, a claim made by a person is an incorrect claim if:
(a) the claim is for a supplementary payment; and
(b) when the claim was made, the person was not qualified for the payment claimed but was qualified for another supplementary payment.
(4) For the purposes of the social security law, if:
(a) a person makes a claim for a pension, allowance, benefit or other payment under a law of the Commonwealth, other than this Act or the 1991 Act, or under a program administered by the Commonwealth, that is similar in character to a social security payment, other than a supplementary payment (the initial claim); and
(b) when the claim was made, the person was qualified for a social security payment, other than a supplementary payment; and
(c) the person subsequently makes a claim for the social security payment referred to in paragraph (b) (the later claim); and
(d) the Secretary is satisfied that it is reasonable that this subsection be applied;
the person is taken to have made the later claim on the day on which the initial claim was made.
(4A) For the purposes of the social security law, if:
(a) a person makes a claim for an income support payment (the initial claim); and
(b) on the day on which the initial claim is made, the person is qualified for another income support payment (the other income support payment); and
(c) the person subsequently makes a claim for the other income support payment (the later claim); and
(d) the Secretary is satisfied that it is reasonable that this subsection be applied;
the person is taken to have made the later claim on the day on which the initial claim was made.
(4B) For the purposes of the social security law, if:
(a) a person makes a claim for a supplementary payment (the initial claim); and
(b) on the day on which the initial claim is made, the person is qualified for another supplementary payment (the other supplementary payment); and
(c) the person subsequently makes a claim for the other supplementary payment (the later claim); and
(d) the Secretary is satisfied that it is reasonable that this subsection be applied;
the person is taken to have made the later claim on the day on which the initial claim was made.
(5) In this section:
supplementary payment means:
(a) carer allowance; or
(b) double orphan pension; or
(c) education entry payment; or
(i) mobility allowance; or
(j) pensioner education supplement.
Subdivision C—Manner of making a claim
16 How to make a claim
(1) A person makes a claim for a social security payment or a concession card:
(a) by lodging a written claim for the payment or card; or
(b) by making the claim in accordance with subsection (7).
(2) A written claim for the purpose of subsection (1) for one social security payment or for a concession card must be in accordance with a form approved by the Secretary.
(3) Two or more written claims by the same person may be combined in one claim. Such a claim must be made in accordance with a form approved by the Secretary for the purposes of this subsection.
(4) A written claim is lodged by being delivered:
(a) to a person apparently performing duties at a place approved for the purpose by the Secretary; or
(b) to a person approved for the purpose by the Secretary; or
(c) in a manner, and to a place, approved for the purpose by the Secretary.
(5) Subject to subsection (6), a place or person approved for the purposes of subsection (4) must be a place or person in Australia.
(6) The Secretary may approve a place or person outside Australia for the purposes of subsection (4) for the lodgment of:
(a) claims made under a scheduled international social security agreement; or
(b) claims for AGDRP in relation to a major disaster that occurred outside Australia; or
(c) claims for AVTOP.
(7) A person may make a claim in a manner approved by the Secretary for the purposes of this subsection.
(8) The power of the Secretary to make an approval under subsection (7) is not limited by any other provision of this section.
THE ISSUES
There is common ground between the parties as to the issues to be decided by the Tribunal in this application.[5] Those issues are as follows:
(a)Firstly, whether the Applicant’s age pension should commence from an earlier start date than 30 May 2016; and
(b)Secondly, whether the Applicant can be deemed to have made an earlier claim under sections 12, 13 and 15 of the Administration Act.
[5] The Respondent in its Statement of Facts and Contentions of 31 January 2018 identifies these issues in paragraphs 2 and 3. The Applicant identifies the same issues in paragraphs 3 and 4 of his Statement of Facts, Issues and Contentions in Reply filed on 7 February 2018.
THE EVIDENCE
There was evidence both documentary and viva voce before the Tribunal.
In so far as the evidence was documentary it comprised the following:
(a)The T documents;
(b)A witness statement provided by the Applicant entitled “STATEMENT OF FACTS, ISSUES AND CONTENTIONS IN REPLY.[6]
[6] It should be noted that the reference in the Applicant's document being "in Reply" was that it was filed in response to the Secretary's Statement of Facts and Contentions dated 31 January 2018.
The Applicant entered the witness box and gave sworn evidence and was of course cross-examined by Ms V Chan, a solicitor from the Department of Human Services who appeared on behalf of the Respondent. In the course of his viva voce evidence the Applicant adopted his STATEMENT OF FACTS, ISSUES AND CONTENTIONS IN REPLY and stated that it was true and correct in every particular.
Additionally as noted previously the Respondent filed a document entitled “SECRETARY’S STATEMENT OF FACTS AND CONTENTIONS” dated 31 January 2018.
OBSERVATIONS OF THE APPLICANT
It is relevant to make some observations as to the Applicant and his demeanour in the witness box. It should be stated at the outset that it was difficult not to have considerable sympathy for the Applicant in the context of the subject matter of this application. He presented as an articulate, intelligent and likeable man of integrity. In addition to the evidence that he gave concerning the subject matter of this Application which will be addressed further in these reasons, he gave evidence of his education and background, having studied but not completed accountancy at the University of Witwatersrand in South Africa. He left university to pursue a business career predominantly in the smash repair industry with an emphasis on repair of motorcycles. He later migrated to Israel and spent some six years there approximately prior to moving to Australia where he has lived ever since. Unfortunately, some business ventures in Australia proved not to be successful and as a consequence he has been left in somewhat strained financial circumstances. Notwithstanding his predicament he did maintain a dignity in the witness box that must be acknowledged.
THE APPLICANT’S EVIDENCE
The evidence of the Applicant contained in his witness statement is referred to in its entirety.
Quite understandably the fulcrum of his cross-examination by Ms Chan related to the question of whether or not the Applicant completed an appropriate form (perhaps more accurately described as an approved form) being a “Claim for An Age Pension”. An example of such a form was attached and marked with the letters “ST – 1” to the Respondent’s Statement of Facts and Contentions.
The evidence of the Applicant was that in about December 2014 he endeavoured to complete an application for the age pension or as he described it, that on 22 December 2014 he began completing the Department’s website registration for the age pension using its online portal. He stated that the website required comprehensive or copious amounts of information to be provided in order for the application to be completed. He stated he had a “comprehensive financial position” and that as he completed each section of the electronic form on the Department’s website it took him into what he described as a “new set of documents.” He stated that he was in fact overwhelmed by the process and did not complete it.[7] Nonetheless, he states that he did receive confirmation from the Department that he had been allocated a customer reference number. This fact is confirmed by the document as annexed to the Applicant’s witness statement which is a letter from the Respondent dated 22 December 2014 which contains a reference number (322 148 654K) and states amongst other things, that: “This letter is to confirm you have successfully registered for self-service on 22 December 2014….”. It is of some importance to record that this letter also states in clear and unequivocal language the following: “If you did not register for self-service, or you did but not for all the date/s and time/s specified above, please call us immediately.” The letter Annexure D to the Applicant’s witness statement is incomplete in that it is obvious from the document itself that it is more than one page and the last sentence simply stops part way through, and underneath that last sentence there are further words “Continued on the back”. There is no back or rear page of the letter annexed. Unfortunately, we do not know what the rest of the letter said. Regrettably, this letter was not reproduced in the T documents.
[7] In paragraph 10 of his witness statement the Applicant concerning this aspect of the matter stated: "The requirement to fill out the copious number of forms became overwhelming for the Applicant, and the Applicant found himself unable to proceed because of the insurmountable level of stress." In the statement of reasons accompanying this application the Applicant stated: "When I attempted to lodge a claim for the Age Pension on that date, because of my complicated financial position at that time, every time that I attempted to complete the application, the system required a further set of documents. As attested by my GP Dr Schneeweiss, I was experiencing acute anxiety and I found the requirements for all that documentation overwhelming." These references to his witness statement and statement of reasons are not made for the purposes of identifying any differences between the content of such statements and his evidence in the witness box but merely for the sake of completion and reference to all the evidence. It is submitted that the matters referred to in his statement are overall consistent with the evidence that he gave in the witness box.
Subsequent to being allocated the customer reference number referred to above he attended an office of the Respondent in High Street Windsor and spoke to a customer service officer who allocated him a new customer registration number. The Applicant stated that the customer service officer did not explain why a new number was allocated to him. This occurred on or about 30 May 2016.
Critically, the Applicant stated in response to some questions from Ms Chan: “I don’t dispute that the forms weren’t completed. The evidence is that I had medical issues and I didn’t complete them. They weren’t completed because of my medical issues. The idea of having to confront that copious amount of documentation was frightening for me. I understand that if I had gone into the Department I would have found someone who would have helped me. When you are in the middle of that it doesn’t seem that easy. The queues at Centrelink are irrelevant. Had I realised that we wouldn’t be here today.” He further stated towards the end of his evidence again: “The only reason I didn’t complete the form was medical issues. I have done everything I can to offer the Department my bona fides. If the timing was different it would not have occurred.”

Those references do prompt a consideration of the medical evidence contained in exhibit A to the Applicant’s witness statement which is a letter dated 20 December 2016 from Dr Anthony Schneeweiss. He states that he has treated the Applicant “for many years”. The report of Dr Schneeweiss is referred to in full. However, he concludes that the Applicant was at the time of his 65^th birthday experiencing anxiety that precluded him from attending the Centrelink offices. He observes:
“I have no doubt that he would have applied earlier that he was anxious about attending Centrelink at the time that he actually turned 65…. He clearly could not have attended at that time, given his level of anxiety about the process.”[8]
[8] The doctor did in the final paragraph of the letter record that he was writing it to reinforce the Applicant's application for a backdating of the age pension payments.
ANALYSIS
Section 16 of the Administration Act provides that a claim for a Social Security benefit, of which the age pension is one, must be made in writing. Obviously, a claim in writing can be made electronically using the Department’s internet portal.
There was no evidence before the Tribunal that indicated a claim in writing either in paper or electronic form, was completed on or about the date that the Applicant turned 65. Indeed as noted above the Applicant quite properly conceded both in his witness statement and in the witness box that this did not occur.
The language of section 11 combined with section 16 of the Administration Act that a claim shall be made in writing has been held in the authorities as being mandatory. As has been noted in several authorities the subject matter of the claim is the disbursement of public monies consequent upon the satisfaction of various criteria laid down in the relevant statutes for the payment of pensions, benefits and allowances. It would be to attend the administration of such legislation with the greatest uncertainty both for alleged claimants and for those charged with the administration of such legislation if such mandatory requirements were not adhered to.
Such authorities further specify that the requirement in such statutes that a claim be made in writing is of central importance to the administration of the legislation and the requirement that such claims be made in writing is not to be characterised as a mere matter of machinery for carrying out the undoubted purposes of the Administration Act.[9] It has also been found that compliance with the strict requirements of the statute (including the requirement under section 16 of the Administration Act that a claim be in writing and in the form specified) is necessary.[10]
[9] Formosa v Secretary, Department of Social Security(1988) 81 ALR 687 at 694 per Davies and Gummow JJ.
[10] Castleman v Department of Family & Community Services[2002] FCA 1019 per Stone J.
The Applicant at paragraph 24 of his witness statement asserted that there was “irrefutable evidence” that the Applicant went online on 22 December 2014 to make an application for the age pension and that as a result of the issue of a Customer Reference Number in the subsequent letter sent to him by Centrelink of that date that he made a completed claim for the age pension that “fully complied with” the provisions of section 13(1) of the Administration Act.
This contention on the part of the Applicant cannot be accepted by the Tribunal for the reasons that an application in writing for the age pension in the approved form was not on the Applicant’s own admission (as noted above in paragraphs 14 to 16 above and also paragraphs 10,[11] 11[12] and 20 of his witness statement[13]) ever completed and lodged with Centrelink. The letter from Centrelink to the Applicant dated 22 December 2014 does not confirm such a fact. It merely confirms successful registration for self-service as at that date.
[11] See footnote 7 above.
[12] In that paragraph the Applicant stated: “The Applicant had every intention of completing the age pension application process on 22 December 2014, but for medical reasons was unable to proceed.”
[13] In that paragraph he stated: "There is clear evidence why the Applicant did not complete the process on 22 December, 2014, as there is irrefutable evidence that the Applicant began the process, intended to complete the process, and only did not complete such process because of medical reasons."
Further, it should be noted that the letter from Centrelink to the Applicant dated 22 December 2014 contained the sentence referred to in paragraph 15 above, warning the Applicant that if he did not register for self-service he should call Centrelink immediately. It seems difficult to accept that the Applicant could have believed that the letter of 22 December 2014 in some way amounted to an acknowledgement of a successfully completed application for the age pension. It just doesn’t say that. It seems beyond any doubt that the letter conveyed only one message which was that the effect of registration for self-service was merely to be a springboard or platform for making any future application to Centrelink or otherwise accessing letters and correspondence online. Surely, if the Applicant had believed that he had successfully registered for the age pension on that date, given the language of the letter which did not record such a fact, he would have immediately questioned Centrelink as to whether he really had successfully completed such an application on receipt of the letter. It is telling that he did not do so.
By reason of the foregoing the Tribunal has to conclude that the Applicant did not lodge a claim for an age pension prior to 30 May 2016 in accordance with the strict requirements or sections 11 and 16 of the Administration Act in that there was no written claim for an age pension lodged with the Respondent in a form approved by the Secretary.
It is then necessary to consider whether there are any other avenues in the legislation open to the Applicant to successfully contend that the claim for the age pension made by him can be backdated to the date of his 65^th birthday without a written claim being successfully lodged.
At this juncture it should be recorded that for the purposes of determining the commencement or what is described in section 42 of the Administration Act as “a person’s start day in relation to a Social Security payment” reference must be made to Clause 3 of Schedule 2 of the Administration Act which provides that if a person makes a claim for a Social Security payment and the person is qualified for the payment on the day on which the claim is made the start day in relation to such payments is the day on which the claim is made. As observed above the Applicant made a claim on 30 May 2016 for the age pension and by reason of the legislation referred to previously he qualified for the age pension as and from that date.
Section 12 of the Administration Act provides that the Secretary may determine that a person is taken to have made a claim in certain circumstances if the applicant became qualified for a new payment while receiving another income support payment or alternatively, he became qualified for the new payment immediately after ceasing to receive another income support payment.
It is readily apparent that there is no evidence, and of course the Applicant did not assert otherwise, that he was receiving any other form of income support payment prior to him being granted the age pension on 30 May 2016. Therefore, the provisions of section 12 of the Administration Act cannot apply in the case of the Applicant.
There are several authorities that have considered whether a claim for a pension may be backdated or perhaps to describe it more accurately in the context of this application whether it should commence from an earlier starting day. There is a common theme that emerges from those cases and it is that for an applicant to succeed in establishing an earlier starting date or perhaps a retrospective commencement of a pension entitlement there is a high threshold that must be met. At times particularly to someone who is uninitiated in such applications, or to the layman, this may seem a threshold that at times is somewhat onerous.
In the context of section 13(2) of the Administration Act, where it is asserted that an applicant suffers from a medical condition which had a significant adverse effect on that person’s ability to lodge the claim it is necessary for evidence to be adduced to the requisite standard that the Tribunal is satisfied at the relevant date that the applicant for the age pension was so disabled by his medical conditions as to be incapable of lodging the application for the age pension on the earlier date which in this case was upon attaining 65 years of age.[14]
[14] See Cobbin v Secretary, Department of Families, Housing, Community Services and indigenous affairs [2012] AATA 433.
Section 13(3A) addresses special circumstances which if the criteria are met determines that the start date for payment of the pension is the day on which the department was contacted. The section requires the Secretary to be satisfied that in the special circumstances of the case it was not reasonably practicable for the Applicant to lodge such claim on an earlier date. Once again there has been some fairly well worn authority as to what constitutes special circumstances and how they will be applied. In Cobbin’s case as was observed by Senior Member Creyke in the Full Court of the Federal Court of Australia in Dranichnikov v Centrelink observed that: “To some extent the question whether there were special circumstances must depend on how it came about that the error [omission] occurred.[15]
[15] (2003) 75 ALD 134 at page 148.
In Re Beadle v Director – General of Social Security[16] it was stated that the special circumstances must be “unusual, uncommon or exceptional”. That is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special. In another case involving medical conditions it was held to involve a consideration of the impact of the medical condition on the person’s capacity to make rational decisions to manage their day-to-day affairs.[17]
[16] (1984) 6 ALD 1 at [3].
[17] See Papageorgiou v Secretary Department of Family and Community Services[2005] AATA 465.
The letter of 22 December 2016 from Dr Schneeweis does not contain any professional or expert opinion as to whether the underlying anxiety or anxiety disorder from which the Applicant suffered at that time was such as to preclude him from being able to complete the Respondent’s form contained in its online portal. Further, the report does not express any expert or other opinion as to whether or not the Applicant had the ability or capacity to recruit assistance from others to enable him to complete such forms. Regrettably, there is just no evidence on these topics. All it states is that his anxiety precluded him from attending at the Centrelink offices. Additionally, it does not provide an opinion whether he might have been able to attend such offices if he had someone accompanying him for such purposes. Unfortunately, it does not explain as much as one would have hoped for. What exactly did the relevant anxiety disorder restrict the Applicant to? For instance, without knowing, was he unable to have any interaction with others or was he dependent on others? Did he remain indoors for extended times? Did he have little or no capacity to interact with other people who may have been able to provide assistance? These sorts of questions remain unanswered, and it is submitted such information would have more accurately enabled the Respondent as well as this Tribunal to assess whether or not the condition he suffered was sufficiently significant or otherwise unusual, uncommon or exceptional as articulated in the relevant authorities, so as to justify the commencement of the age pension at an earlier date or as has been sometimes described “backdated”.
The medical report does not identify the medical conditions suffered by the Applicant in terms of being unusual, uncommon or exceptional. It does not specifically consider the impact of the medical condition suffered by the Applicant on his capacity to make rational decisions to manage his day-to-day affairs as noted in the authority above and as observed in the previous paragraph does not provide an opinion as to whether or not he was capable of filling out the forms on the Respondent’s online portal or otherwise managing his affairs so as to obtain assistance from someone to do so or otherwise, perhaps attend the Centrelink office with such person, to enable a successful application to be made. It should be noted that the Applicant fairly and to his credit reasonably conceded in cross-examination that had he been able to attend he would have found someone who could have helped him. Presumably, had he attended with a friend or other person helping him the application would have been successfully completed and processed immediately after he turned 65 years of age.
Similarly, the Applicant in both his witness statement and his viva voce evidence did not address the question of whether there were other options open to him to lodge a successful claim when he turned 65. These other options were as was considered in the previous two paragraphs in terms of whether he was precluded from obtaining assistance from others, to either complete the relevant forms online or alternatively, attend with him at the offices of Centrelink at the relevant time. It should be noted again as observed above that he acknowledged that the Centrelink staff were helpful and had he been able to attend that someone no doubt would have been able to assist. This poses the question which remains unanswered as to why he didn’t seek the help of others to either complete the online application via the Respondent’s Internet portal or alternatively, attend at the office. It is this lack of evidence or paucity of evidence which precludes the Tribunal from being able to find that the Applicant can avail himself of section 13 in such a way that it can find that throughout the period concerned that he was suffering from a medical condition and that such medical condition or circumstances related to that medical condition had a significant adverse effect on his ability to lodge the claim earlier.
For these reasons the evidence that has been provided from both the Applicant and his treating general practitioner does not satisfy the test to identify special circumstances in the relevant sense required by section 13(3A) of the Administration Act.
There has been in the material filed before the Tribunal reference to section 15 of the Administration Act[18]. This section captures a situation that may arise where what is described as an “incorrect or inappropriate claim” is made by an applicant for a Social Security payment. The section is of course predicated on an applicant making an incorrect claim for a Social Security benefit. Given the findings of the Tribunal referred to above that in fact no claim was lodged or otherwise made by the Applicant with the Respondent on 22 December 2014 this section cannot apply. Therefore, the Applicant is unable to avail himself of this section to contend that the facts give rise to a deemed claim within the ambit of this section.
[18] The applicant refers to section 15 of the Administration Act at paragraph 31 of his Statement of Facts, Issues and Contentions in Reply. However, he asserts the section does not apply because a correct claim was made. The Respondent addresses the section in paragraphs 30 and 31 of its Statement of Facts, Issues and Contentions and asserts that the section does not apply. Given that it has been raised it is considered by the Tribunal as appropriate to adjudicate upon in any event.
CONCLUSION
For these reasons the Tribunal must affirm the decision under review.

40. I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of R. Cameron, Senior Member

.............................[sgd]...........................................
Associate
Dated: 11 May 2018

Date of hearing: 20 March 2018

Applicant: In person

Advocate for the Respondent: Ms V Chan, Department of Human Services

Date of hearing:	20 March 2018
Applicant:	In person
Advocate for the Respondent:	Ms V Chan, Department of Human Services