Mula and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 858

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 858

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/2046

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		THERESA MULA

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr C. Ermert, Member

Date2 December 2011

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and substitutes the decision that the start date for Ms Mula’s disability support pension is 15 September 2010.  The Tribunal directs that the respondent determine and pay the additional benefit payable to Ms Mula as a result of this decision.

.................[signed]…..............

Member

DISABILITY SUPPORT PENSION – date of claim – payment start date – whether start date can be backdated – special circumstances - whether claim for newstart allowance can be considered a claim for disability support pension – decision set aside

Administrative Appeals Tribunal Act 1975 (Cth) s 37

Social Security Administration Act 1999 (Cth) ss 11(1), 13(3A), 16(4), Schedule 2

REASONS FOR DECISION

2 December 2011 Mr C. Ermert, Member       

INTRODUCTION

1.      From 1996 to 2000 and then from 2001 Ms Mula, the applicant in this case, received newstart allowance (NSA) from Centrelink. Centrelink is the service provider for the Department of Families, Housing, Community Services and Indigenous Affairs.  On 13 October 2010 Ms Mula contacted Centrelink and expressed an intention to lodge a claim for disability support pension (DSP).  On the same day, Centrelink sent a letter to Ms Mula acknowledging the contact and stating the need to submit a claim on or before 27 October 2010.  Ms Mula lodged the claim on 28 October 2010 and as a result Centrelink decided to pay her DSP from 28 October 2010.

2.      Ms Mula requested a review of that decision by a Centrelink authorised review officer (ARO).  The ARO affirmed the decision.  Ms Mula requested a review of the ARO decision by the Social Security Appeals Tribunal (SSAT).  The SSAT affirmed the original decision on 19 April 2011.  This matter is an application for review of the SSAT decision.

THE HEARING

3. Ms Mula did not attend the hearing. Ms A Bramley, a Centrelink advocate, represented the respondent. The Tribunal had before it the documents provided by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).  The Tribunal also had before it the respondent’s Statement of Facts and Contentions.

THE ISSUES

4.      The issues to be determined are:

a)the date of claim for the DSP;

b)whether the start date of the payment can be backdated; and

c)whether an earlier claim for newstart allowance could be considered as a claim for DSP.

THE EVIDENCE

5.      Ms Mula did not attend the hearing, nor did she provide the Tribunal with any material for consideration.

6.      Ms Bramley asked the Tribunal to accept some minor amendments to the respondent’s Statement of Facts and Contentions dated 27 October 2011.

CONSIDERATION

Date of Claim

7.      At the SSAT hearing, Ms Mula gave evidence of trying to lodge a claim for DSP two years earlier and stated that Centrelink staff refused to accept the claim.  She also stated that she had probably tried to lodge a claim before 2002.

8.       At the hearing, the respondent acknowledged that there are Centrelink records of two telephone calls in 2002. There is no record or documentation that a claim was lodged until 28 October 2010. 

9. Sections 11(1) and 16(4) of the Social Security Administration Act 1999 (the Administration Act) require a claim for a social security payment to be in writing. Section 13(3A) of the Administration Act provides for the date of the claim to be taken as the date the applicant contacted Centrelink, if the Secretary is satisfied that special circumstances made it not reasonably practicable for the person to lodge the claim earlier.

10.     In his Statement of Facts and Contentions, the respondent has accepted that Ms Mula’s medical condition at the time constituted special circumstances.  The Tribunal agrees with the respondent’s concession and finds that Ms Mula is taken to have lodged the claim on 13 October 2010, the date she contacted Centrelink about her claim for DSP. 

Start Date

11. The general rule contained in the Administration Act is that the start date for the payment of a benefit is the date of the claim. Clause 11(2) of Schedule 2 of the Administration Act provides for the start date to be dated four weeks earlier than the date of claim if:

a)the person became incapacitated for work as a result of the medical condition; and

b)the person made a claim more than five weeks after the beginning of the incapacity; and

c)the Secretary is satisfied that the person has continued to suffer from the incapacity; and

d)the Secretary is satisfied that the medical condition is the sole or principal cause of the person’s failure to make the claim within five weeks after the start of the incapacity.

12.      In this case the respondent has conceded, correctly in my opinion, that this section applies to Ms Mula’s circumstances.  As a consequence, the Tribunal finds that the start date for Ms Mula’s DSP is backdated to 15 September 2010.

Newstart Allowance Claim

13.     In his Statement of Facts and Contentions, the respondent considered the possibility that Ms Mula’s 2001 claim for newstart allowance might be taken as a claim for DSP.  The Tribunal has reviewed that consideration and agrees with the respondent’s conclusion in paragraph 47 that:

There is no evidence that Ms Mula satisfied the requirements for disability support pension in February 2001.  Consequently, Ms Mula’s claim for disability support pension cannot be taken to have been made on the day the claim for newstart allowance was lodged. 

DECISION

14.     The Tribunal sets aside the decision under review and substitutes the decision that the start date for Ms Mula’s disability support pension is 15 September 2010 and directs that the respondent determine and pay the additional benefit payable to Ms Mula as a result of this decision.

I certify that the fourteen [14] preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr C. Ermert, Member

Signed:..........................[signed]…….........................................
  Clerk  Y. Maker

Date of Hearing        21 November 2011
Date of Decision  2 December 2011
Advocate for the Applicant             Unrepresented

Advocate for the Respondent        Ms Ailsa Bramley, Centrelink Advocacy Branch