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

[2017] AATA 688

McCourt and Secretary, Department of Social Services (Social services second review) [2017] AATA 688 (15 May 2017)

Division:GENERAL DIVISION

File Number:           2016/4327

Re:Patrick McCourt

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member P E Nolan

Date:15 May 2017

Place:Brisbane

The Tribunal affirms the decision under review.

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Senior Member P E Nolan

CATCHWORDS

SOCIAL SECURITY – Age Pension – start date of payment – whether special circumstances – whether discretion to extend application time limit beyond 14 days – whether discretion to extend application time limit beyond 13 weeks – decision under review affirmed

LEGISLATION
Social Security (Administration) Act 1999 s 13

REASONS FOR DECISION

Senior Member P E Nolan

15 May 2017

INTRODUCTION

1. Mr Patrick McCourt (the “Applicant”) is seeking to have the commencement of his
   

   [1] Exhibit 1, T Documents, T 2, Decision of the Social Services and Child Support Division, p.7

   Age Pension backdated. On 13 July 2016 the Administrative Appeal Tribunal, Social Services and Child Support Division affirmed a decision made by a review officer of the Secretary, Department of Social Services (the “Respondent”) in which the Applicant’s claim was rejected.[1]

   BACKGROUND

2. The Applicant’s carer first contacted Centrelink on or about 15 September 2015 for information about the Age Pension following an accident.[2] Centrelink provided the relevant material but the application for the Age Pension was not lodged until 24 December 2015.[3] The application was successful but Centrelink said it cannot backdate the payments under the pension to the date on which the applicant first made contact.

   [2] Exhibit 1, T Documents, T 17, relevant customer contact with Centrelink, p.122

   [3] Exhibit 1, T Documents, T 5, Claim for Age Pension, p.46-62

3. The Applicant has asked the Tribunal to revisit the decision not to backdate the payment of his pension.[4]

   [4] Exhibit 1, T Documents, T 1, Application for Review, p.1-5

4. The decision under review must be affirmed because the legislation does not permit me to backdate the payments because of the length of the delay in lodging the application for the pension. I explain my reasons below.

   THE FACTS

5. The facts are not in dispute and both parties affirmed this at the outset of the hearing. What follows is based on the account provided by the Applicant and on the T Documents.[5]

   [5] Exhibit 1, T Documents.

6. The Applicant remained in the workforce after his 65^th birthday but he was badly injured as a result of a fall in his home on 28 August 2015.[6] He was hospitalised for some days and underwent extensive surgery for spinal injuries.

   [6] Exhibit 4, Statement of Debra McCourt, dated 12 May 2016

7. After the accident he was not able to take care of himself or manage his own affairs, including dealing with Centrelink. He required the assistance of a carer. He was lucky in that his former wife, Mrs Debra McCourt (the “Carer”), became his full time carer and agreed to take him in to live with her and look after him. The Applicant was unable to work and needed the assistance of Centrelink. Given his age he was entitled to apply for the Age Pension.

8. Shortly after the accident in August 2015, the Applicant’s Carer attempted to lodge an application for the Age Pension online but there were difficulties in doing so.[7] The Applicant’s Carer contacted Centrelink by phone and noted the Applicant’s intention to apply for the Age Pension on or about 15 September 2015.[8]

   [7] Exhibit 4, Statement of Debra McCourt, dated 12 May 2016

   [8] Exhibit 1, T Documents, T7, Letter from Centrelink re: intention to claim, p.79

9. Centrelink records confirm a package of materials was sent to the Applicant immediately following the contact on 15 September 2015. The material contained within the package needed to be filled out and returned to the Respondent within 14 days. The covering letter which accompanied those materials informed the Applicant his pension would be payable from the date he first contacted Centrelink provided his application was lodged within

   
   

   14 days from the date of that first contact.[9] If this application was not lodged within that timeframe, payments would not be backdated. They would commence instead on the date of the application.

   [9] Exhibit 1, T Documents, T7, Letter from Centrelink re: intention to claim, p.79

10. The Carer gave evidence that she had received a package but she had not looked carefully at the small print and did not realise that it needed to be complied with within
    14 days. The Applicant himself testified and indicated that he was unable, due to the injuries and the effect they had on him both psychologically and physically, to even apply his mind to the documents he was required to complete. As such neither of them appear to have realised or appreciated the requirement that information be provided within the
    14 day timeframe.

11. In this case the Applicant argues that due to his inability to fill out the forms and even assist by conveying the information to his Carer he has been unfairly treated. Ultimately his Carer formulated the material and made a successful application on the Applicant’s behalf on 24 December 2015, and the Age Pension was granted but payments commenced from the date of the application.

12. The Applicant now seeks payment for the intervening period between when the contact was made in September 2015 and when the application was recognised by Centrelink on receipt of the documentation provided in December 2015. The Applicant seeks some months of back payments.

13. The Applicant says the payments should be backdated to the date of his first contract because the delay in lodging the application was not his fault. He said he was incapable of dealing with the application and his carer misunderstood what was required.

14. I accept the Applicant was prevented from progressing his application in a timely way because of his medical condition. There is no suggestion that Centrelink did anything wrong; the Applicant’s case is simply that he was a victim of unfortunate circumstances. The question for me, however, is whether I have the power to waive the application of the usual time limits in the Administration Act.[10] If I do have the power, is it appropriate to exercise it in this case?

    [10] Social Security (Administration) Act 1999 s 13.

    THE LEGISLATION

15. Section 13 of the Social Security (Administration) Act 1999 (the “Administration Act”) sets out the time limits which govern the application.[11] Section 13(1) sets out the general rule which says the application would ordinarily have to be lodged within 14 days of the first contact if it is to be paid from that earlier date. But sections 32(2) and (3) create special rules that permit an application to be paid from the date of first contact if the application is lodged after 14 days but within 13 weeks. The ‘13 week’ rule applies in cases like the present where the Applicant was disabled by a medical condition from progressing his or her application.

    [11] Social Security (Administration) Act 1999 s 13(1).

16. I accept the Applicant would be entitled to take advantage of the so-called ’13 week rule’ so that if his application was lodged within 13 weeks of him making first contact on
    15 September 2015, he would be entitled to be back paid from that date once his application was approved. Unfortunately, the Applicant lodged his application with Centrelink more than 13 weeks after 15 September 2015 – namely on 24 December 2015. I have to consider whether the applicant is still entitled to rely on the 13 week rule and obtain, in effect, an extension to the 13 week period.

17. The social security legislation sometimes lays down a rule but also – in some cases – creates a discretionary power not to apply the rule in a particular case. Those discretionary powers, where they exist, permit the decision-maker to provide relief where the application of the rule on its terms would cause hardship. But section 13 has already provided a mechanism to extend the time within which an application can be lodged where medical problems create delay in progressing the application. There is no power to further enlarge the scope of the exception to the usual rule even where an applicant is blameless or in special circumstances.

18. The legislation is clear enough. There is no discretion to provide relief from the general rule. Parliament has opted instead to include a provision which creates a special rule for people experiencing medical problems that inhibit their ability to make applications.
    I cannot effectively expand the scope of that special rule.

19. There are, within the Administration Act circumstances where the decision maker can exercise discretion and make, for example, one off payments but none of these are concerned with extending limitation periods.[12]

    [12] See Social Security (Administration) Act 1999 s 12.

    CONCLUSION

20. The decision under review must be affirmed. However it is worth noting that the Applicant would not necessarily be entitled to the benefits of a discretion to extend time if such a discretion did exist. The fact that nothing was said or done on his behalf to Centrelink is, in my opinion, significant. Centrelink cannot be expected to know that a person is in dire straights and unable to fill out forms unless they are told. The fact that nothing was done or said in the 13 week period counts against the exercise of any discretion if it did exist. The best that the Applicant can say is that retrospectively the Respondent may have become aware of his circumstances but again that is an uncertain basis for requiring the exercise of a discretionary power.

    DECISION

21. The decision under review is affirmed.

I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member P E Nolan

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Associate

Dated: 15 May 2017

Date of hearing:	10 April 2017
Applicant:	In person
Advocate for the Respondent:	Ms Julia Driver
Solicitors for the Respondent:	Department of Human Services