McLachlan and Secretary to the Department of Family and Community Services

[2002] AATA 1216

DECISION AND REASONS FOR DECISION [2002] AATA 1216

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/962
GENERAL ADMINISTRATIVE DIVISION
  Re:         IAN ARTHUR McLACHLAN
  Applicant
  And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             26 November 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
  Member

1. SOCIAL SECURITY - disability support pension - date of lodgment of application - start date
   Social Security (Administration) Act 1999 ss13(2), 13(4), 41(1), Schedule 2

REASONS FOR DECISION

26 November 2002  G.D. Friedman, Member

1. This is an application by Ian Arthur McLachlan (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 22 July 2002.  The SSAT affirmed a decision of an authorised review officer of Centrelink dated 14 February 2002 to grant disability support pension (DSP) to the applicant from 15 November 2001 and not an earlier date.

2. At the hearing of this matter on 20 November 2002 the applicant represented himself and Mr M. Todd, an advocate with Centrelink, represented the Secretary to the Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T28).
   BACKGROUND

4. On 15 November 2001 the applicant made an application for DSP and on 24 December 2002 a Centrelink officer decided to grant the pension from 20 November 2001.  On 14 February 2002 an authorised review officer varied the decision by changing the commencement date to 15 November 2001, the date of lodgment of the claim.  On 20 May 2002 the applicant sought review by the SSAT, and on 6 September 2002 the applicant lodged an application with the Tribunal for review of the decision by the SSAT.
   EVIDENCE

5. The applicant gave oral evidence that he contacted Centrelink on 2 July 2001 to give notice of his intention to make a claim for DSP.  He acknowledged that a Centrelink officer gave him an application form and told him that the claim would have to be lodged by 16 July 2001 for payments to begin from 2 July 2001.  He said he believed that on or before 16 July 2001 he took a treating doctor's report to Centrelink together with his application for DSP and was told that the application would take six to eight weeks to process.  The applicant explained that he did not request a receipt or acknowledgment of the application, and could not explain the failure by Centrelink to place a record of the visit on its computer system.

6. The applicant stated that he was referred to a specialist, whom he saw on 28 August 2001.  He saw the specialist again on 12 September 2001.  He stated that by this time he had not received any information from Centrelink, so he contacted the officer handling the claim and was told that there was no record of the lodgment of an application.  He said he attended Centrelink on 12 September 2001 and submitted the doctor's report and a new application form.  He conceded that he did not ask for a receipt or acknowledgment because he was upset at the terrorist attacks in the United States of America the previous day and his mind was preoccupied.

7. On 7 November 2001 the applicant submitted a further medical report to Centrelink.  The applicant said that Centrelink informed him that there was no record of the second application form, so he attended the Centrelink office on 15 November 2001 and lodged the form. 

8. The applicant stated that he was unhappy with his treatment by Centrelink and the lack of adequate communications by the Moreland office, and was frustrated by delays.  He said that he had informed Centrelink of his correct telephone number but officers continued to use the former number.  He was upset that two application forms had been mislaid, together with an important file.  He had experienced problems with delivery of mail, and this had exacerbated the difficulties in dealing with Centrelink. 

9. Documents from Centrelink show that the applicant contacted Centrelink on 2 July 2001 and was issued with a claim form.  His records were accessed on  19 July 2001.  A medical certificate lodged on 3 August 2001 states that  the applicant's conditions were temporary.  A medical report lodged on 12 September 2001 states that the applicant would be able to return to work within 6-12 months.  A file note dated 12 September 2001 indicates that a claim form was not attached to the medical report.  A medical certificate lodged on 25 October 2001 states that the applicant's conditions were temporary.  A medical certificate lodged on 7 November 2001 states that the applicant would not be able to return to work for more than two years.   
   CONSIDERATION OF THE ISSUES

10. The Social Security (Administration) Act 1991 (the Act) provides in relation to a social security payment:

    41.(1)      Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person's start day in relation to the social security payment.

    …

    13.(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.

    …

    13.(4)      A reference in this section to the Department being contacted includes a reference to the Department being contacted by post or telephone or by the transmission of a message by the use of facsimile, computer equipment or other electronic means.

The general rule in relation to start days is contained in clause 3 of Schedule 2 of the Act:

3.(1)        If:

(a)       a person makes a claim for a social security payment; and

(b)the person is qualified for the payment on the day on which the claim is made;

the person's start day in relation to the payment is the day on which the claim is made.

1. Mr Todd submitted that the applicant was given a claim form on 2 July 2001.  He said there was no record that another form was given to the applicant until November 2001.  He submitted that there was no record that any form was lodged before 15 November 2001.

2. In reaching its decision, the Tribunal takes into account the written material, oral evidence and submissions made at the hearing. 

3. On the material presented, the Tribunal accepts that the applicant experienced difficulties with delivery of his mail, and efforts by Centrelink to contact him may have been unsuccessful through no fault of his.  These matters added to the frustration that he felt in his dealings with Centrelink, particularly as a file in respect of another matter has been missing for a considerable time.  The Tribunal also accepts that the applicant made a genuine attempt to recall events that occurred in 2001 connected with the processing of his application for DSP.

4. The Tribunal notes that there is no objective evidence corroborating the version of events described by the applicant, particularly in relation to the two occasions when he claims to have lodged an application form.  There is no record of such lodgments on the Centrelink computer system, and the forms have not been located.  On balance, the Tribunal is not persuaded that the applicant lodged an application for DSP on 16 July 2001.  For similar reasons, and taking into account the file note dated 12 September 2001, the Tribunal finds that the application was not lodged on 12 September 2001.

5. The Tribunal accepts the submission by Mr Todd that there is no evidence of lodgment of an application for DSP by the applicant before 15 November 2001, other than the applicant's recollection.  As this date was not within 13 weeks of 2 July 2001, the initial contact by the applicant on 2 July 2001 cannot be accepted as the date of claim under s13 of the Act.  There is no evidence that any delay in lodging the application was caused by a medical condition suffered by the applicant.

6. For these reasons, the Tribunal finds that, under clause 3 of Schedule 2 of the Act, the start date for payment of DSP was 15 November 2001, the date on which the claim was made.
   DECISION

7. The Tribunal affirms the decision under review.

   I certify that the seventeen [17] preceding paragraphs are a true copy of the reasons for the decision of:
   G.D.Friedman, Member

   (sgd)       Catherine Thomas
                 Clerk

   Date of hearing:  20 November 2002

   Date of decision:  26 November 2002
   Advocate for applicant:               Self-represented
   Advocate for respondent:            Mr M. Todd, Advocate with Centrelink