Malcolm and Secretary, Department of Family and Community Services - [2002] AATA 764

DECISION AND REASONS FOR DECISION [2002] AATA 764

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V02/649

GENERAL ADMINISTRATIVE DIVISION       )
           Re      IVAN MALCOLM
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date23 August 2002
PlaceMelbourne

Decision      The Tribunal affirms the decision under review.
  ...........Sgd. Mr J. Handley..............
  Senior Member
SOCIAL SECURITY - whether claim for age pension lodged prior to March 2000 - applicant paid from March 2000 - whether any prior entitlement - decision affirmed.
Social Security Act 1991 ss 46, 48, 49, 50 & 603C.
Social Security (Administration) Act 1999 s.16

REASONS FOR DECISION

23 August 2002 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Social Security Appeals Tribunal ("the SSAT") made on 24 April 2002. The SSAT then decided to affirm a decision previously made by an authorised review officer ("ARO") on 14 February 2002.
The decision under review concerned the date of commencement of payment of age pension.
The application was heard on 19 August 2002. Mr Malcolm appeared without representation. Mr Perdon appeared on behalf of the respondent.
The applicant opened his application by exclaiming that he was "sick of being called a liar" and said that "the next person who calls me a liar will think that they have been hit by a 747". Thereafter a feature of the presentation by him of his application was i) a rigid belief in his entitlement to age pension from a date earlier than that which had been decided and ii) his abusive and defamatory attitude towards Centrelink officers. His language was profane and need not be repeated. In an attempt to unravel the history of the relationship between the applicant and the respondent – based on what was learnt from the hearing and from the documents lodged – the following facts emerged.
The applicant migrated to Australia in 1996 from New Zealand. He was apparently engaged in a business venture which was unsuccessful. He eventually claimed and qualified for Newstart Allowance ("NSA"). In or about January 1997, the applicant made an application at the Gawler office of Centrelink in South Australia for age pension. The applicant had not then achieved 65 years and his application for age pension was rejected. Thereafter, the applicant continued to be paid NSA. When it was later learnt that he was severely disabled, NSA continued but he was exempted from the activity test requirements.
In approximately March 1998 the applicant was invited to make an application for disability support pension ("DSP"). This was because he had completed a medical examination with a Commonwealth Medical Officer ("the CMO") who found that the qualifying criteria for DSP had been achieved. That is to say the applicant satisfied the requisite impairment and invalidity criteria. However, there is no record of a claim for DSP being made.
In September 1998, the applicant achieved 65 years. NSA then ceased. He was invited to claim age pension. The applicant was then a resident of Western Australia and living with his daughter. He attended a Centrelink office at Joondalup with the intention of claiming age pension. Apparently, an officer of Centrelink advised the applicant that should he decide to defer payment of age pension he would later qualify for a pension bonus of $5000. This apparently had some appeal to the applicant and he did not then claim age pension. Thereafter, the applicant continued to reside with his daughter in Western Australia until he returned to South Australia in or about March 2000. He then attended the Centrelink office at Gawler, where he formally made a claim for age pension and thereafter has been paid it.
The applicant claims the age pension from September 1998. He does so on the basis that he then achieved 65 years and had previously claimed age pension. He makes this application also on the basis that the respondent, being an agency of the "Commonwealth", owed him a duty of care.
Mr Perdon, on behalf on the respondent, lodged a Statement of Contentions prior to the hearing. It is a summary of the documents lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. Attempts to seek further clarification from Mr Malcolm by way of cross-examination were largely unsuccessful, due to his belligerent and abusive attitude demonstrated by his response to questions.
The Statement of Contentions – which is consistent with the T documents – indicates that the respondent has no written application for age pension made by Mr Malcolm prior to March 2000. The written application made in 1997 is of no relevance in these proceedings because it was an application made at a point in time when there was no qualification. From the file it appears that the applicant made an application for DSP in January 1997, but it was withdrawn. He made another claim in December 1997 for DSP, but he did not proceed with it. An application for DSP was forwarded to him in March 1998, but it was not ever lodged. In November 1998, it appears from the departmental file that the applicant was then working and earning an income. There are references also made by departmental officers in the form of file memorandums where there have been discussions with the applicant, who indicated that he did not wish to proceed with the claim for pension.
There is a record of the applicant attending the Centrelink office at Joondalup in September 1998. However, the applicant did not then claim the age pension. It appears that there were discussions with the applicant concerning pension bonus in the event that a claim was deferred, but no formal claim was then made. A claim was made at the Gawler office in March 2000 and by reason of that claim, and also by reason of the applicant's age, he did qualify for age pension and it has been paid since that date.
THE LEGISLATION
The Social Security Act 1991 ("the Act") at ss 48, 49 and 50 provide that any application for age pension must be a "proper claim", it must be made in writing upon a form approved by the Secretary and must be lodged at an office of the department or some other approved place. (Also, refer s.16 Social Security (Administration) Act 1999). Benefit is paid to an applicant (s 46) from the provisional commencement day being the date on which the claim form is lodged, section 48 provides that there are some limited circumstances where a claim for age pension need not be made. Those are circumstances which exist only where a person is receiving another defined benefit, namely, (at the time of qualification for Age Pension), disability support pension, wife pension, carer payment, parenting payment, bereavement allowance, widow B pension, widow allowance, mature age allowance, mature age partner allowance, partner allowance or special need pension.
CONCLUSION AND REASONS FOR DECISION
The applicant explained that his application in 1997 for age pension should have been accepted because he was then disabled and would be forever incapable of working. He said that in New Zealand, persons qualify for age pensions at the age of 63 and that Australians should think more laterally. Nonetheless, his application then was rejected because he was not then 65 years. Thereafter NSA was paid until September 1998, when the applicant achieved 65 years.
Immediately prior to the cessation of NSA, the applicant had been invited to apply for DSP, but there is no record of the applicant ever having made a claim for it. If he had claimed DSP, it would appear from the medical documents on the Tribunal file that he would have qualified as he met all the qualifying criteria. It also follows that had that benefit been claimed, and paid, he would have automatically qualified for age pension at the age of 65 without having to formally claim, pursuant to the provisions of s 48 of the Act.
However, because an application for DSP was not ever made, it was not ever paid. The payment of NSA at September 1998 did not permit the respondent to immediately commence payment of age pension pursuant to the provisions of s 48 of the Act. A formal application needed to be made. It was not made. It is true that the applicant did have a discussion with an officer of the respondent at the Joondalup office of Centrelink where the pension bonus scheme was discussed. But there is nothing to indicate that a claim for age pension was then made. Indeed, it appears that having been interested in the opportunity to qualify for a pension bonus, the applicant chose not to claim, but rather deferred claiming the age pension.
The applicant was adamant during the hearing that he had qualified for, and had been paid DSP prior to September 1998. I have indicated above that as a fact, I am not satisfied that this was so. Nonetheless, I believe that this might be the basis for the apparent confusion suffered by the applicant concerning his social security entitlements. When he was advised during the hearing that his invalidity was recognised by the department and he had been paid NSA, yet was exempted from the activity test by reason of his invalidity (refer S.603C), he exclaimed words to the effect that the description of the benefit was an irrelevance. This would suggest to me that the applicant did not understand that a benefit was only payable – subject to the provisions of s 48 of the Act, where it is specifically claimed. There is much to suggest that the applicant was advised on a number of occasions to claim DSP but he did not ever do so.
I am not satisfied that the applicant is a 'liar', as he believes he has been labelled. Rather, I think he has suffered from a combination of i) misunderstanding the type of benefit that was paid prior to March 2000, ii) a sense of having an entitlement without having to claim and iii) rejection by him of advice given to make appropriate claims. Having listened to the applicant during the hearing, particularly his involvement in litigation elsewhere, it would appear that he is a person who does not take advice. Had he accepted the invitation to claim DSP, it clearly would have been paid and he would have automatically qualified for age pension.
In all of the circumstances, I am not satisfied that the applicant did make a claim in writing, on a form approved by the Secretary, nor did he lodge such an application at an office of the department or at a place approved by the Secretary of the department before March 2000. Additionally, I am not satisfied that the applicant did receive any of the benefits listed in s 48 of the Act prior to March 2000. It follows, therefore, that the applicant had no entitlement to age pension before March 2000. It follows, therefore, that the decision under review, insofar as it concerned entitlement to age pension before March 2000, must be affirmed.
The remaining part of the applicant's application concerned his allegation that a duty of care owed to him by the Commonwealth was breached. The applicable legislation which enables the Administrative Appeals Tribunal to review decisions made by the respondent does not extend to consideration of any claim or allegation made that a duty of care by the Commonwealth has been breached. If the applicant has any rights with respect to this part of his application they must be exercised elsewhere.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:         .....................................................................................
  Secretary
Date/s of Hearing  19 August 2002
Date of Decision  23 August 2002
Counsel for the Applicant        Self Represented
Solicitor for the Applicant
Counsel for the Respondent    Mr D Perdon, Departmental Advocate
Solicitor for the Respondent