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

[2020] AATA 102

Logan and Secretary, Department of Social Services (Social services second review) [2020] AATA 102 (29 January 2020)

Division:  GENERAL DIVISION

File Number(s):  2019/6396

Re:         Elisa Logan   

APPLICANT

And        Secretary, Department of Social Services

RESPONDENT

Decision

Tribunal:  Senior Member B J Illingworth

Date:      29 January 2020

Place:     Adelaide

The Tribunal sets aside the decision under review and remits the matter to the Social Services & Child Support Division of the Administrative Appeals Tribunal for reconsideration of the Applicant’s entitlement to the Disability Support Pension and the Applicant’s entitlement to payment of arrears of the Disability Support Pension.

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Senior Member B J Illingworth

SOCIAL SECURITY – Disability Support Pension – entitlement – commencement date – payment of arears – decision under review set aside and remitted

REASONS FOR DECISION

Senior Member B J Illingworth

29 January 2020

INTRODUCTION

1. This is an application for a review of the decision of Social Services & Child Support Division of the Administrative Appeals Tribunal (“AAT1”) dated 10 September 2019, affirming the decision of an Authorised Review Officer (“ARO”) dated 5 June 2019, namely that the Applicant was not entitled to Disability Support Pension (“DSP”) from the date of her original claim, being 26 February 2018.

2. The matter was listed before this Tribunal for a directions hearing by telephone on 24 January 2020.  During that directions hearing, the Respondent applied for orders by consent that the matter be remitted back to the AAT1 for reconsideration of the Applicant’s entitlement to DSP in respect of her application dated 26 February 2018 and the Applicants entitlement to payment of arrears of her DSP. The Applicant did not oppose an order in those terms.

BACKGROUND

1. On 26 February 2018, the Applicant lodged a claim for DSP; the claim was rejected on 7 September 2018.

2. On 26 February 2019, the Applicant lodged a further claim for DSP; the claim was subsequently accepted on 27 May 2019.

3. On 27 May 2019, the Applicant requested an internal review of Centrelink’s decision of the same date on the basis that she should have been paid her DSP from the date of her original application, being 26 February 2018.

4. On 5 June 2019, the ARO affirmed the original decision to reject the Applicant’s claim for DSP made on 7 September 2018 and affirmed the subsequent decision to grant DSP from 26 February 2019. The ARO concluded that the Applicant’s start day for DSP was 26 February 2019 and that she could not be paid from an earlier date.

5. The Applicant then applied for a review of the ARO’s decision to the AAT1. On 10 September 2019, the AAT1 affirmed the decision under review on the basis that the Applicant had not sought a review of the original decision by Centrelink dated 7 September 2018 until she lodged her subsequent claim for DSP on 26 February 2019. The AAT1 determined that this was outside of the 13 week statutory review period, and accordingly, no arrears of DSP could be paid to the Applicant from the date of her original claim, being 26 February 2018. The AAT1 did not consider whether the Applicant was entitled to DSP at the time of her original claim on 26 February 2018. 

6. On 7 October 2019, the Applicant applied to the General Division of the Administrative Appeals Tribunal for a review of the AAT1’s decision. The Applicant says that the AAT1 erred in finding that she did not request a review of the original decision of Centrelink, made on 7 September 2018, within the prescribed 13 week review period of that decision.

7. The Tribunal notes the following:

   (a)       The Applicant made her original claim for DSP on 26 February 2018. A decision to reject this claim was made by the Respondent on 7 September 2018.

   (b)       The Respondent accepts that on 11 September 2018 the Applicant made a request for review of the decision dated 7 September 2018, to reject her claim for DSP made on 26 February 2018 and that this request for review was made within 13 weeks from the date of being notified of the decision.

   (c)       As a request for review was made within the prescribed 13 weeks of receiving notice of the decision, the Applicant could be paid arrears of DSP to 26 February 2018 if she meets all DSP eligibility and payability criteria that applied at that time.

   (d)       The AAT1 failed to consider as part of the review the decision of the ARO that the Applicant was not entitled to DSP at the time of her original claim dated 26 February 2018 and decided the application solely on the basis that the Applicant was not entitled to arrears of DSP because of her failure to request a review within 13 weeks of receiving notice of the decision. 

decision

1. The Applicant did seek an application for review within 13 weeks, as is evidenced in the Department’s s 37 documents (T1, page 4).

2. The decision of the AAT1 dated 10 September 2019 is set aside.

3. Pursuant to s 42D of the Administrative Appeals Tribunal Act 1997, the application is remitted to the AAT1 to determine:

   (a)       The Applicant’s entitlement to DSP in respect of her application dated 26 February 2018; and

   (b)       The Applicants entitlement to payment of arrears of her DSP.

4. The parties are granted liberty to apply; and

5. The matter is adjourned to a date to be fixed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

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Associate

Dated: 29 January 2020

Date of hearing:

24 January 2020

Applicant:

Self-represented 

Advocate for the Respondent:

Mr A Parker, Department of Human Services