McAlister and Secretary, Department of Family and Community Services
[2005] AATA 485
•27 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 485
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1492
GENERAL ADMINISTRATIVE DIVISION ) Re MARK McALISTER Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Senior Member Robin Hunt Date27 May 2005
PlaceSydney
Decision The Tribunal sets aside the decision under review and in substitution thereof decides that Mr McAlister should be taken to have applied for Disability Support Pension in July 1999, pursuant to section 12 of the Social Security (Administration) Act 1999.
..............................................
Ms R Hunt
Senior Member
CATCHWORDS
SOCIAL SECURITY – Disability support pension (DSP) – Claim made for different category of pension – Request to backdate DSP to date of claim for unemployment benefits – Claim made before date of legislation enabling pension transfer – Deemed application -Retrospective operation of legislation – Taken to have applied for pension on date of claim for unemployment benefits – Decision set aside
LEGISLATION
Social Security Act 1991
Social Security (Administration) Act 1999 ss12, 94, Schedule 2 (cl 3(1))
CASES
Burgess v Secretary, Department of Family and Community Services [2004] FCA 136
Spence and Secretary, Department of Family and Community Services, Appeal No M218475
Re Fry and SDSS (1990) 20 ALD 709
BOOKS
Peter Sutherland with Allan Anforth, Social Security and Family Assistance Law, Sydney, The Federation Press and Welfare Rights and Legal Centre, (2001).
REASONS FOR DECISION
27 May 2005 Robin Hunt, Senior Member summary
1. Mr McAlister, the Applicant, was the recipient of a single parent payment at the time of the Tribunal’s review. He sought review of the decision made by the Social Security Appeals Tribunal (the SSAT) on 26 October 2004 that he was not entitled to disability support pension (DSP) prior to 23 June 2003. Mr McAlister wished to have DSP payments backdated to 15 July 1999. This was the date of his application for a different category of pension, which he duly received. He supplied medical evidence to show that he was diagnosed with schizophrenia in 1999 or possibly prior to 1999. He had been receiving a parenting payment or Newstart allowance since July 1999, depending on the times when his daughter was in his care. The Tribunal has decided that Mr McAlister should be taken to have applied for disability support pension in July 1999. This means that his application to this Tribunal was successful and that the decision under review has been set aside.
issues
2. The matters for the Tribunal’s consideration were:
· Whether Mr McAlister was qualified for disability support pension before the date of his application in 23 June 2003; and, if so,
· Whether section 12 of the Social Security (Administration) Act 1999 (the Administration Act) applies so as to allow Mr McAlister’s disability support pension to be backdated to the date he qualified for that pension.
3. If transfer of Mr McAlister’s pension was allowable under section 12, the further question arose as to the date from which the transfer to DSP should occur. Mr McAlister argued that he should be entitled to DSP from the date of his Newstart allowance application made on 5 or 15 July 1999.
evidence
4. The main facts are not in contention. The Respondent says that Mr McAlister began receiving Newstart allowance on 15 July 1999 and Mr McAlister says that this payment started on 5 July 1999. The application form is not before the Tribunal but Mr McAlister’s claim for parenting payment, made on 20 October 1999, is before the Tribunal. The 20 October 1999 claim form discloses that Mr McAlister was already receiving Newstart allowance. During a period in 1999 and in 2000 to 2002, he was receiving parenting payment (single) for his daughter. Claims for Newstart allowance, dated 4 February 2000, and parenting allowance, dated 30 October 2000, are before the Tribunal. Mr McAlister went back to Newstart allowance when his daughter returned to the care of her mother on 29 December 2002. He received DSP from the date of his 23 June 2003 application until he again took over the care of his daughter. Once his daughter was in his care, parenting payments resumed. Mr McAlister has been in receipt of one or other social security payment since July 1999.
5. Mr McAlister told the Tribunal at a hearing on 22 April 2005 that he applied for DSP on 23 June 2003 at the invitation of a Centrelink officer. This was because the officer realized he was on the wrong sort of pension and that his mental condition made him eligible for DSP. He thought that he would have benefited from some legal assistance but had not been able to obtain much help of this sort. A legal aid solicitor had prepared a written submission for him to put before the Tribunal. Mr McAlister thought the law was very difficult for someone who had problems like his. He complained of discrimination and humiliation.
6. Mr McAlister told the Tribunal that he found it difficult to hold down a job although he had worked from time to time in the past. He said he was always the first person employers asked to leave if there was a problem in the workplace because he had trouble fitting in. He was also finding it difficult to look after his daughter. He was continuing to take his medication as prescribed. As further evidence of this, he produced a record from a pharmacy which had been filling his prescriptions. This was also presented as evidence of his having been diagnosed with schizophrenia in 1999.
7. Documents before the Tribunal show that, when Mr McAlister lodged his claim for DSP on 23 June 2003, he described his mental condition in the application form. The record before the Tribunal does not show what medical evidence was supplied with the application or particulars of any medical evidence in connection with his claims for other assistance, prior to the claim made on 23 June 2003. However, Mr McAlister gave oral evidence that Centrelink knew he suffered from schizophrenia. In a written submission prepared for him by the Welfare Rights Centre, Mr McAlister claims that from October 2000 he provided Centrelink with medical certificates showing that he suffered from schizophrenia.
8. As well, the decision of the SSAT made on 24 August 2004 notes that Mr McAlister lodged the first of a series of medical certificates stating he was suffering from schizophrenia on 3 October 2000. In addition, a Centrelink file note dated 19 June 2003 shows “Medical Certificate not accepted “, although no medical certificate is attached to that note in the records before the Tribunal.
9. Then, on 23 June 2003, Mr McAlister was rated by Centrelink as having an impairment rating of “at least 20 points”. Centrelink’s file notes show that Mr McAlister underwent psychiatric assessment on 31 July 2003 for consideration of the DSP claim. The medical specialist who made the required impairment rating also found his impairment was sufficient in itself to prevent him from working for the next 2 years or undertaking any educational or vocational training or on the job training during the next 2 years.
10. The Tribunal has before it a number of medical certificates issued in 2004 or 2005 showing Mr McAlister is and has been suffering from schizophrenia. Medical prescription records from a pharmacy show that Mr McAlister was prescribed regular treatments from 30 August 1999 and continuing up to April 2005. The prescribing medical doctors who issued the prescriptions are named. The earlier prescriptions were furnished by Dr Carstairs. Later, Dr Wong prescribed treatments and also Dr Perica. Both Drs Perica and Wong have furnished medical certificates stating Mr McAlister to be schizophrenic. The certificates are dated 11 April 2005 and 23 January 2005 respectively. Both doctors state that they have cared for Mr McAlister since 2002. Dr Wong confirms that Mr McAlister was previously a patient of Dr Carstairs. In Dr Wong’s opinion, Mr McAlister has established schizophrenia at the date of the April certificate and he has suffered this disability since 1999 and possibly before 1999. In another certificate, dated 1 October 2004, Dr Wong certifies that the records of the practice show Mr McAlister was diagnosed as early as 1999 and commenced taking ‘zyprex’ around this time. Dr Wong further certified that treatment and psychiatric review had been undertaken since.
11. The Tribunal documents include copies of Mr McAlister’s applications for various forms of pensions or allowances on and since 20 October 1999. He claimed parenting payment on this date. On 4 February 2000 he claimed Newstart Allowance. On 30 October 2000 he again claimed parenting payment. Various other steps took place such as a review of his claim for parenting payment (single) and Newstart Preparing for Work Agreements and correspondence about his claims before the DSP claim in June 2003.
legislation
Social Security (Administration Act) 1999
12. Rules relating to the payment of disability support pension are set out in the Administration Act. The commencement date of the Administration Act is 20 March 2000. Sections 41(1) and 42 of the Administration Act explain that a social security payment becomes payable to a person on that person’s “start day” and refers to Schedule 2. Clause 3(1) of Schedule 2 sets out the general rule for start days. The start day is the day on which a claim for payment is made, provided the person is qualified for payment on that day.
13 Section 11 of the Administration Act states that a person who seeks a social security payment must make a written claim for the payment. However, the Act also contains provisions which allow a claim deemed to have been made. Section 12(1) provides that a person may be taken to have applied for another payment on the day on which he or she became qualified. Section 12 follows, in part:
“(1) Subject to subsection (3), if:
(a) a person is receiving an income support payment; and
(b) while receiving the payment, the person becomes qualified for another income support payment (the other payment); and
(c) the Secretary determines that the person is to be transferred to the other payment;
the person is taken, for the purposes of the social security law, to have made a claim for the other payment on the day on which the person became qualified for the other payment.
(2) Subject to subsection (3), if:
(a) a person who has been receiving an income support payment ceases to receive the payment; and
(b) immediately after ceasing to receive that payment, the person becomes qualified for another income support payment (the other payment); and
(c) the Secretary determines that the person is to be transferred to the other payment;
the person is taken, for the purposes of the social security law, to have made a claim for the other payment on the day on which the person became qualified for the other payment.
(3) The Secretary may only make a determination under subsection (1) or (2) if the transfer is one that the Secretary could have determined should occur apart from this section.”
Social Security Act 1991
14. Section 94 of the Social Security Act 1991 (the Social Security Act) contains provisions as to qualification for the disability support pension. It reads, in part:
“(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person's impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work; …”
analysis
15. Mr McAlister has been in receipt of Centrelink allowances or pensions continuously from the day in July 1999 when he started to receive a parenting payment. He has argued that section 12 should operate so as to enable his claim for DSP, which was recognized in 2003, to be backdated to the date of his successful application for another type of pension made in July 1999. Firstly, I note that Wilcox J in Burgess v Secretary to the Departments of Family and Community Services [2004] FCA 136 held, at paragraphs 10 and 12 that clause 3(1) of Schedule 2 must be read subject to other provisions of the Administration Act. The consequence of this is that the commencement date for benefits is the first day on which the applicant is contacted, provided that person lodges a formal claim within 14 days of first contact. In the present case, although the parties have not produced the form for the application made in July 1999, it is clear that an application was made as Mr McAlister has been receiving payments since that time. Therefore, consistent with the judgment in Burgess, the start day for Mr McAlister is the date of his application in July 1999. Also, see discussion below as to retrospective operation of section 12 of the Act.
16. I further note that both Newstart allowance and DSP are an “income support payment” within the meaning of section 12(1)(a) of the Act. See section 23 of the Social Security Act and section 3(2) of the Administration Act. I next considered the qualification provisions for DSP, set out in section 94 of the Social Security Act. Mr McAlister clearly qualifies for DSP at the date of his medical assessment in 2003. The 2003 assessment found he suffered the required degree of impairment (20 points) and that he could not work for 2 years from that time forward.
17. The records before me show Mr McAlister was in receipt of Newstart allowance in July 1999 and again in February 2000. This indicates he was unemployed at the time of his applications made in July 1999 and February 2000. This is so even though the Respondent has not produced any application made in July 1999. Again, when he filled out the “Preparing for Work Agreements” on the record in January 2002 and claimed job network assistance in May 2003, Mr McAlister continued to be unemployed. He was still unemployed when he sought review of his claim for Newstart allowance on 9 May 2003, saying in the form he completed that his medical condition of schizophrenia and depression affected his concentration. On the form he was asked when it started and Mr McAlister wrote “a while ago”. Further, Mr McAlister gave oral evidence that he had not been able to hold down any job for very long and that he was always the first to be sacked if an employer wanted to cut down on employees. He said the only long term employment he had was in the lead-up to the Olympic Games in 2000. I accept that the evidence before the Tribunal shows that Mr McAlister was unable to work at the time he started to receive the Newstart allowance in July 1999. The Secretary concedes that Mr McAlister has been the recipient of welfare payments continuously since that time. Mr McAlister impressed the Tribunal as a witness of truth and told the Tribunal that he had been unable to work since 1999. In consequence, on the balance of probabilities, I am satisfied that Mr McAlister was unable to work due to his medical condition since 1999, when he made his application for unemployment benefits.
18. As well, the medical evidence from his treating practitioners and pharmacist indicate that Mr McAlister was disabled by schizophrenia in 1999 and continuing, although Mr McAlister was not medically assessed by Centrelink until June 2003. Taking all the evidence into account, on the balance of probabilities, I am satisfied that Mr McAlister did suffer from his disabling condition to the degree that would have meant that he could not work and fitted the DSP criteria throughout the period that he received Newstart allowance in July 1999 and during receipt of parenting payments since July 1999.
19. Therefore, I am satisfied that Mr McAlister meets clauses (a) and (b) of section 12(1), that is, he is a person receiving an income support payment who, while receiving the payment, became qualified for another income support payment, being the DSP. I am also satisfied that Mr McAlister should be transferred to the other payment, being the DSP.
20. In Burgess, Wilcox J, at paragraph 12 of his judgment, held that:
“the general scheme of the legislation is to fix the commencement date for benefits by reference to the first day on which the Department is contacted by or on behalf of the applicant, provided the person lodges a formal claim within 14 days of that first contact.”
Wilcox J remitted Mr Burgess’s case back to the Tribunal on this basis and in order for Mr Burgess to demonstrate that he was entitled to DSP at the time he first made a claim for DSP unemployment benefits in 1992. In other words, the Court accepted that section 12(3) permits the Tribunal to backdate a claim such as Mr Burgess’ or Mr McAlister’s if the applicant is able to satisfy the Tribunal, as a matter of fact, that they were entitled to receive DSP continuously from the date of application for another unemployment benefit, even where this occurred before the date of commencement of the Act.
21. Wilcox J observed that section 12(3) was not easy to understand but that there would have been no point in the enactment if his reasoning were not correct. He referred to the Explanatory Memorandum (the EM) that accompanied the Bill, illustrating that his interpretation was in accordance with the intention of Parliament. The EM states that the general rule is that a person must make a claim for a particular income support payment but that “(T)his clause provides an exception to the rule”.
22. The approach taken by this Tribunal in satisfying itself as to the date at which Mr McAlister became qualified for DSP, for the purposes of section 12 of the Administration Act, is fully supported by the reasoning in Burgess. Mr McAlister can be taken, under section 12, to have made a claim for DSP in July 1999. Accordingly, I find that Mr McAlister should be deemed to have made a claim for DSP on 5 July or 15 July 1999, whichever was his actual date of application, pursuant to section 12 of the Administration Act. I am unable to determine the actual day with more accuracy as the form of application has not been produced. I note with interest that the SSAT, although it rejected Mr McAlister’s claim, found in favour of another applicant in accordance with Wilcox J’s reasoning in Spence and Secretary, Department of Family and Community Services Appeal No M218475. I also note that Peter Sutherland with Allan Anforth in Social Security and Family Assistance Law (2001) report that section 12 authorises the Secretary to transfer one form of income support for another and that this reflects “a long-standing Departmental practice, as illustrated by Re Fry and SDSS (1990) 20 ALD 709”.
decision
23. The Tribunal sets aside the decision under review and in substitution thereof decides that Mr McAlister should be taken to have applied for Disability Support Pension in July 1999, pursuant to section 12 of the Social Security (Administration) Act 1999.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
Zoe McDonald
AssociateDate of Hearing: 22 April 2005
Date of Decision: 27 May 2005
Solicitor for the Applicant: Self
Solicitor for the Respondent: Mr Luke Carter
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