NICHOLAS COBBIN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS - [2012] AATA 433

[2012] AATA 433

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/5566
Re	NICHOLAS COBBIN
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Professor RM Creyke, Senior Member
Date	10 July 2012
Place	Canberra

The decision under review is affirmed.

………………….[sgd]…………………………
Professor RM Creyke, Senior Member

CATCHWORDS

SOCIAL SECURITY- Benefits - disability support pension – whether start date could be backdated - deemed start date - whether lodgement prevented by significant adverse effect of medical condition - whether prevented from lodgement by special circumstances - whether medical condition incapacitated for work and was the sole or principal cause of failure to lodge claim throughout the period from 2009 to 2010 - – whether sought review of decision not to back date within 13 weeks of decision

LEGISLATION

Social Security (Administration) Act 1999 (Cth) ss 11(2), (3), (3A), 16, 41, 42, Schedule 2, clause 11(2), 109

CASES

Dranichnikov v Centrelink (2003) 75 ALD 134

Mulholland and Secretary, Department of Employment and Workplace Relations [2006] AATA 225
Olejnik and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 388
Papageorgiou and Secretary, Department of Family and Community Services [2005] AATA 465
Panke v Director-General of Social Services (1981) 4 ALD 179
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Beadle v Directory-General of Social Security (1985) 60 ALR 225
Re Dean and Secretary, Department of Education, Employment and Youth Affairs [2005] AATA 586

Secretary, Department of Social Security v Hales (1998) 51 ALD 695

REASONS FOR DECISION

Professor RM Creyke, Senior Member

Mr Nicholas Cobbin applied for disability support pension on 17 September 2010. The claim was granted on 3 December 2010 and paid from 17 September 2010.
Mr Cobbin contended that he was entitled to have his claim backdated to 14 April 2009, being the date he first made an inquiry about a claim for some form of income support.
On 25 July 2011, Mr Cobbin sought review of the decision which was affirmed by the original decision-maker on 25 July 2011. On 6 September 2011, Mr Cobbin sought a further review by an authorised review officer (ARO). On 5 October 2011, the ARO affirmed the original decision.
Mr Cobbin sought further review by the Social Security Appeals Tribunal (SSAT) on 2 November 2011, which affirmed the decision on 17 November 2011.
Mr Cobbin again sought review by the Tribunal on 22 December 2011. The matter was heard in Bateman’s Bay, NSW on 29 May 2012. At the hearing, Mr Cobbin undertook to provide further information which was received by the Tribunal on 18 and 19 June 2012. The Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (Secretary, Department) responded to this information in a final submission dated 3 July 2012.

BACKGROUND

Mr Cobbin, who was born in England, acquired Australian citizenship on 29 April 1997. He lived in the USA between 1991 and April 2007 where he was a successful builder. He was married and had two daughters. In 2007 he returned to Australia with his family for an extended stay of eight months. During this period he intended to renovate a house on a block he had purchased at Burrill Lake, NSW in May 2007 for sale, and return to the USA.
The relationship with his wife soured during this visit, due in part to her mental health problems, and the couple separated in December 2007. His wife and two children left Australia in August 2008 and returned to the USA. In February 2009 Mr Cobbin visited the USA, returning to Australia in March 2009. On 14 April 2009, Mr Cobbin advised Centrelink that his two children were no longer in his care and his parenting payment single and family tax benefit payments were cancelled.
On 1 August 2009, Mr Cobbin returned to the USA for a visit where he remained until 27 November 2009. Relations with his wife again deteriorated and in August 2009 his wife filed a domestic violence prevention order against Mr Cobbin.
Mr Cobbin said he tried to maintain contact with his daughters by making the effort to see them for their birthdays in February and August respectively. Twice he flew them to Australia, an example being a visit between July 2010 and 27 August 2010. Mr Cobbin also visited the USA in Feb 2010, leaving Australia on 24 February 2010 and returning on 12 March 2010. For the girls’ visit to Australia, some of the arrangements for the visit, and payment for their airfares were made by Mr Bill Powell, the partner of Ms James, Mr Cobbin’s mother. Mr Cobbin said he just bought the tickets and did so online. However, as part of the arrangements for his daughters’ visit he drove to Sydney airport to pick them up.
The children and his wife also came out to Australia for a five month visit in 2011. His wife made the arrangements for the children to attend a primary school in Ulladulla. However, he was often responsible for their supervision outside school hours during the visit as his wife was bedridden for much of the time. Mr Cobbin separated from his wife in December 2007, although they did later attempt reconciliation. However, following renewed difficulties, the couple have been divorced since March 2012 and the children and their mother remain in the USA.
During the periods of domestic turmoil, which continue with legal proceedings both in Australia and in the USA, Mr Cobbin said he was only capable of working fitfully, was smoking marihuana against the advice of his treating doctor, Dr Matthew Kennedy, got into financial difficulties, and by the end of 2009, was in default on his Westpac loan, was unemployed and was not on income support. When asked how he could financially manage his travel to the USA and his daughters’ travel to Australia, Mr Cobbin said because he was extremely anxious about the state of his daughters in the USA he borrowed the money.
Mr Cobbin’s bank accounts indicate he made deposits of nearly $5,000 in the June quarter in 2010, using the telephone banking self-service, and sums of $2,300 and $1,300 in August and September 2010 respectively. When asked about the source of these sums, Mr Cobbin said they came from him liquidating assets. Mr Cobbin made a request by telephone to the bank on 13 April 2010 for financial assistance. Assistance was denied and on 17 June 2010, the bank wrote indicating it was ‘preparing a Formal Default Notice’ to be served. However, as late as 1 November 2011, the Bank was threatening legal action to recover the property, indicating no final steps had been set in motion.
As an illustration of his continuing inability to work, Mr Cobbin said the drawings for the house design were not completed until February 2010, although commenced in 2007. Mr Cobbin said he had managed significant demolition work during 2008 but his work on the house was fitful and until March 2011, the house was ‘unliveable, unsaleable and not fit for rent’.
At the same time, in evidence to the Tribunal Mr Cobbin said in the period between 28 August 2010, when his daughters left Australia and their return at the end of January/early February 2011, Mr Cobbin was working intensively on the house in an attempt to have it finished for their arrival in 2011. His wife had indicated at this time she might attempt another reconciliation. The result was that by August/September 2010, Mr Cobbin said he only had the bathroom, kitchen, and painting to be done. In October 2010 when his wife confirmed that the family would return in 2011, Mr Cobbin said this ‘lightened his mood’ and ‘gave him a reason to focus on finishing the house’. In corroboration of her suggestion, the Tribunal had evidence from an email from Mr Cobbin’s wife, dated 12 October 2010, that she had been enquiring about spousal visas.
Mr Cobbin confirmed that in the period August to 17 September 2010, he was showering, washing himself and his clothes and was dressing. He was living in the studio on the block where his house is located. He said the studio was a ‘pigsty’ and quite unsanitary. Almost every night his mother, who lives 15 minutes’ drive away, was providing him with food or encouraging him to go to her house to eat. He did make tea and coffee for himself and was capable of driving.
Mr Cobbin said his own health deteriorated during the period between 2007 and 2011. As he said ‘I was overwhelmed and it is a difficult thing to prove’. In Mr Cobbin’s view, ‘the most compelling argument is that while I was clearly going broke I did nothing’. In evidence he said he spent ‘a great deal of time worrying and obsessing about my girls, worrying and replaying and obsessing’, and as a result, could not keep his mind on his work.
Mr Cobbin’s contention is that there is evidence of the trauma he was suffering at this time. As he said, ‘The fact that 5 years later [than 2007] I am still here, still finishing a job that I intended to do in an eight month visit. [This] is a better indication of my condition than whether or not I paid my bills on time. The fact that it took me 33 months to apply for my DA [Development application for the house] is a better indication’.

Evidence of Ms James

Mr Cobbin’s mother Ms James said the really worrying thing for the rest of his family was Mr Cobbin’s ‘inability to move, to do anything positive. He seemed to be struck down by the fact that he’d allowed the children to go and his fear and worries about whether he’d be ok with his wife’. This occurred the first time in 2008 but occurred after every visit including the one for five months in 2011.
Ms James’s evidence was that by the end of 2009, Mr Cobbin was ‘suffering markedly from a year of anxiety and stress caused by the breakdown of his marriage, and his concern about the affect [sic] his wife was having on his children’. Finally, she said she got so frustrated with his lack of action that she had phoned Centrelink while Mr Cobbin was at her house, handed the phone to him and ‘stood with him while he made the appointment’. That was in September 2010.

Medical and related evidence

Mr Cobbin was diagnosed with obsessive compulsive disorder (OCD) in January 2009, although the Job Capacity Assessment report dates his OCD from 1998. He had been on an anti-depressant, Serzone, from the end of 2003. However, with the escalation of his domestic problems, in May 2008, Dr Kennedy requested a mental health care plan, and Mr Cobbin was referred to a psychologist, Ms Chel Graham. At this time he was also referred to a physiotherapist for neck pain and problems with his cervical spine. Around 2008 he was also diagnosed with tendonitis, and in October 2010 was referred to a physiotherapist for this condition.
Mr Cobbin’s evidence was that he usually saw his doctor about every six months when he needed a new prescription but that ‘during the period of the worst of the breakup I do recall seeing him very often’. This is borne out by Dr Kennedy’s clinical notes. They confirm visits about every six months, but from February 2008 he saw his doctor every month until May, and for each of those visits, the predominant focus of his brief clinical notes is Mr Cobbin’s family issues. In 2010, Mr Cobbin also went to see Dr Kennedy 4 times between February and October, that is, roughly every two months in that eight month period. On each of those occasions Mr Cobbin’s need for counselling and cognitive behaviour therapy (CBT) was discussed.
In December 2008, following the return of his family to the USA in August, Mr Cobbin ceased taking Serzone and was prescribed another anti-depressant, Lexapro at the increased dosage of 20mg daily. By January 2009, he was diagnosed with moderate reactive . In July 2009, Dr Kennedy maintained his anti-depressant at 20mg daily and again referred Mr Cobbin to Ms Graham to undertake cognitive behavioural therapy. Mr Cobbin’s evidence was that at his doctor’s suggestion he saw counsellors in 2008 and in 2011, the two worst periods of his depression and anxiety. He had between six and ten visits in 2008, these consultations being free, and in 2011, he had over 20 consultations paid for jointly by himself and his mother. However, he was also seeing Ms Michelle Moulos, a counsellor in 2010, as Dr Kennedy’s notes for July and September 2010, confirm.
A medical report of Dr Kennedy’s, dated 5 October 2010, provided for the purpose of his application for DSP, referred Mr Cobbin to physiotherapy, confirmed that he was still on Lexapro at 20mg daily, and that he was also suffering from OCD and had chronic tendonitis in his left bicep. On 5 October 2010, the clinical notes refer to ‘managemt ocd and depn, counselling, cbt, disability form [sic]’.
In July 2011, Dr Kennedy’s clinical notes for Mr Cobbin refer to a letter Dr Kennedy had received from Ms James expressing concern that her son was suicidal, that he was ‘suffering from a significantly increased level of depression … compounded by the fact that he has used medication and dope to keep his feelings under control for many years’. She also said she was concerned that the Lexapro he was being prescribed could be inappropriate for someone involved in substance abuse. She said her background was as a ‘trained counsellor’ but she ‘could not be her son’s therapist’. Ms James supplied a copy of the letter to the Tribunal on 18 June 2012.
At that consultation in July 2011, Mr Cobbin denied being suicidal, and recorded he felt less depressed since his wife returned to the USA, and that while she was in Australia ‘the situation was “unbearable” and chaotic’. He was seeing a social worker (Mr Andrew Humphry) concerning advocating for custody of his children. Dr Kennedy noted Mr Cobbin was also seeing Ms Moulos for counselling and cognitive behavioural therapy and he had recommended Mr Cobbin see a drug and alcohol counsellor and cease using marihuana.
A report of Dr Kennedy, dated 2 April 2012, confirmed that Mr Cobbin had been attending the practice since 2006, that since 2007 he had been suffering from anxiety and reactive depression following his marriage break up, that he had been seeing a psychologist, Mr Jon Hegg, been on anti-depressant medication, and was being treated for OCD, anger management and excessive marihuana use.

Claims history

On 14 April 2009, following the departure of his children for the USA, when he no longer qualified for parenting payment, single or for family tax benefit, Mr Cobbin enquired about an alternate income support payment. Newstart payment was discussed, and Mr Cobbin was advised by letter he needed to lodge a claim within 14 days to enable his possible entitlement to an income support payment to be backdated to 14 April 2009. Mr Cobbin did not lodge an application.
On 19 August 2010, Mr Cobbin contacted Centrelink, commenced a claim for newstart allowance, and advised of his intention to seek a disability support pension. A letter was sent confirming the inquiry and Centrelink advised Mr Cobbin to lodge his claim for DSP by 2 September 2010 to enable any entitlement to be paid from the earliest date. Mr Cobbin did not pursue either claim.
On 1 September 2010, Mr Cobbin again contacted Centrelink and advised of his intention to claim DSP. A letter was sent by Centrelink advising that he needed to lodge his claim on or before 15 September 2010 to enable payment of the claim from the earliest date. Mr Cobbin did lodge his claim but not until 17 September 2010.
His claim for DSP was successful for conditions described as partial hearing loss diagnosed in 1975, shoulder and upper arm disorder diagnosed in 1995, depression and OCD, both diagnosed in 1998. Mr Cobbin had claimed that his deafness affected his communication; his tendonitis affected his arm and neck mobility; his ganglion, diagnosed in 2008, affected the mobility of his hand; his lower back affected his ability to lift and bend; and his depression affected his motivation. He claimed his other conditions were managed with a combination of exercise, analgesics and bed rest.
As the conditions were considered to be fully diagnosed, treated and stabilised and were likely to continue for at least 2 years and Mr Cobbin’s level of impairment was assessed at 40 points, his application for DSP was approved on 3 December 2010, backdated to 17 September 2010. Dr Kennedy had noted in the supporting information he provided for the application for DSP that Mr Cobbin’s depression led to ‘poor motivation’ but that his depression and OCD, had a ‘minimal or limited impact on Mr Cobbin’s ability to function’.
Mr Cobbin claimed he did try to appeal the start date of his DSP. He said he visited Centrelink, Ulladulla ‘before Christmas’ 2010 when he spoke with ‘Martin’ at the counter. Mr Cobbin said he asked about backdating to April 2009. Martin’s alleged response was that ‘the only hope I had of backdating was to September 1, 2010 if I could supply a good reason for missing my first lodging date’. Mr Cobbin said ’I do not recall him telling me I had a 13 week limit. In any case I did not proceed because it did not seem worth the resistance involved’. Mr Cobbin reiterated this claim in a letter to the Tribunal, dated 24 February 2011.
During the hearing an enquiry was made of the Ulladulla Centrelink office to substantiate this claim. There is no recorded visit of Mr Cobbin in the records. However, it was conceded by Mr Cobbin that this may have been because he had indicated at the time that he would not go ahead with his challenge to the start date. There is someone called Martin was working at the Ulladulla Centrelink office and that person continues to be employed there. The Tribunal found Mr Cobbin to be a witness of truth and has no doubt that he did approach the office and speak to Martin even though no record was made of the conversation.
In May 2012, an offer was made to Mr Cobbin by Centrelink for a 4 weeks’ payment, in full settlement of his backdating claim. Mr Cobbin rejected the claim by letter on 16 May 2012.

ISSUES

The issues are:

Whether Mr Cobbin can be paid disability support pension from a date earlier than 17 September 2010; and if so
Whether arrears of disability support pension are payable.

LEGISLATION

The legislation which arises in this matter is set out in the Social Security (Administration) Act 1999 (Cth) (Act). The specific parts of that Act which are relevant are discussed in the following.

CONSIDERATION

Mr Cobbin claims that his DSP payment should have been backdated to 14 April 2009. Alternatively, he claims that the payment should have been backdated to a period, as permitted by the legislation, prior to his lodgement date of 17 September 2010.
Section 11 of Act requires that a person who wants to be granted a social security payment must make a claim.[1] Mr Cobbin has made a claim. Section 16 of the Act requires that a claim in writing must be lodged, in effect at a Centrelink office.[2] Mr Cobbin lodged his DSP claim at the Centrelink office in Ulladulla.
[1] Mulholland and Secretary, Department of Employment and Workplace Relations [2006] AATA 225 at [13]
[2] Olejnick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 388 at [8].
The date from which a successful claim is payable is the ‘start date’ as set out in sections 41 and 42 of the Act and Schedule 2 of the Act. The general rule is that if a person is qualified for a payment on the day they lodged their claim, the start date is ‘the day on which the claim is made’.[3] Mr Cobbin lodged his claim on 17 September 2010 and was qualified for DSP on that day. Accordingly in the normal course his start date is the 17 September 2010 and that was the start date for payment of his DSP.
[3] Social Security (Administration) Act 1999 (Cth) (Act), Sch 2, clause 3(1).

However, there are exceptions to the general rule and it is these exceptions which are at issue in this matter. The three potential bases upon which Mr Cobbin’s claim for DSP may be backdated are found in section 13(2), (3A) and in Schedule 2, Part 3 of the Act.
Under section 13, backdating may be permitted to a date the person first contacted Centrelink about a payment, provided, among other things, the claim was lodged (in the case of DSP) or information provided (in the case of newstart allowance) to the Department within either 14 days of the first inquiry, or in certain circumstances, if the claim was lodged more than 14 days but within 13 weeks of that inquiry.[4]
[4] Act s 13(2), (3A).

Section 13(2): Medical condition with significant adverse effect on ability to lodge claim

Section 13(2) of the Act states that a claim can be lodged more than 14 days but less than 13 weeks after contacting the Department and still be backdated to the day the Department was contacted if:
2(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 argument of the Secretary is that if the Tribunal is satisfied that Mr Cobbin met the requirements of section 13(2), a start date would apply from the first date of contact made within 13 weeks of the claim (section 13(2)(d)). As Mr Cobbin lodged his claim for disability support pension on 17 September 2010, the first contact he made prior to this date, within 13 weeks of the lodgement of the claim, was 19 August 2010. However, the Secretary contends that the evidence does not support a conclusion that Mr Cobbin’s medical condition had a ‘significant, adverse effect’ on his ability to lodge the claim earlier.
Mr Cobbin’s claim is that he was suffering from a medical condition which prevented him from lodging his claim earlier. He has a number of medical conditions. For the purposes of his claim for DSP these included left bicep tendonitis, hearing loss, depression and OCD. His tendonitis and hearing loss would not prevent him lodging a claim, nor was there any suggestion they did so. Mr Cobbin’s argument is that it was his depression and his OCD which led him ‘not to act in his own best interests’. The Job Capacity Assessment dated 30 November 2010 supports his claim since it concluded his ‘depression results in low mood, reduced motivation, lethargy, reduced social interaction with others’ and his OCD ‘results in increased anxiety and over analysis of day to day events, overreaction to comments from others impacting on social interaction’. However, the Assessment also concluded that in combination the two conditions resulted only in a ‘mild to moderate impact on function’.
Dr Kennedy, while noting that Mr Cobbin’s depression led to ‘poor motivation’, concluded that his depression and OCD had a ‘minimal or limited impact on Mr Cobbin’s ability to function’. At the hearing, Mr Cobbin disagreed with that assessment and recalled that the reason for Dr Kennedy’s assessment was ‘he thought my claim marginal, but helped me apply with the focus on my deafness’. Mr Cobbin’s view is supported by reference to Dr Kennedy’s clinical notes. Their predominant focus throughout the period from 2008 onwards is on family issues, Mr Cobbin’s depression, and his resultant need for counselling and cognitive behaviour therapy. By January 2009 Mr Cobbin was diagnosed with moderate reactive depression and he was prescribed Lexapro, an anti-depressant, at the higher dose of 20 mg daily. It was not until January 2011 that Dr Kennedy reduced the dosage of Lexapro to 10 mg daily.

2009

Although Mr Cobbin contacted the Department by letter received on 14 April 2009 concerning an alternate payment to the parenting payment single and the family tax benefit payments for which he no longer qualified, as he did not lodge an application (for DSP) nor provide further information (for newstart allowance) within 13 weeks of that inquiry, these provisions do not apply to him.[5] Accordingly he is not able to claim backdating to 14 April 2009 under any of the exceptions in section 13.
[5] Act s 13(2)(d), 13(3A)(d).

2010

On 03 December 2010 Mr Cobbin was assessed for the purposes of DSP as having a total impairment level of 40 points. The Tribunal notes, however, that only 10 of those points related to the effects of his OCD and depression. The Tribunal takes into account, however, that a higher number of points may have been assigned had Dr Kennedy and, in turn, the job capacity assessor, focused more on the disabling effects of Mr Cobbin’s psychological conditions, the predominant subject of the consultations with Dr Kennedy, and the reason for his increased reliance on his doctor at this time. Dr Kennedy’s clinical records show repeated reference to anxiety regarding his family situation and counselling for OCD and depression in the notations from February 1 2010 to January 21 2011.
However, in that period, Mr Cobbin also arranged for his daughters to come to Australia in August 2010, liquidated assets and made online deposits of the proceeds to his bank account in order to forestall foreclosure on his housing loan. He also said in evidence that his mental condition was not then as bad as in 2008 and 2011, and that he was working quite intensively on his house to make it habitable for his family on their return from the end of January/early February 2011. Mr Cobbin also testified that from October, when he had confirmation of his wife’s intention to relocate to Australia, possibly permanently, his mood was lightened and his motivation increased. Although he was not keeping the studio in which he was then living clean and tidy, he was showering, dressing, washing his clothes, and driving. Although it took his mother’s actions in ringing Centrelink and handing him the phone for him to make the contact which led to his grant of DSP, he was only 2 days late and he had completed the form on his own behalf.
For these reasons, the Tribunal is not able to be satisfied that in August/September 2010 Mr Cobbin was so disabled by his psychological and other medical conditions as to be incapable of lodging his application for DSP on time.

Section 13(3A): Special Circumstances

Section 13(3A) provides a further exception. Where a person who lodges a claim ‘more than 14 days, but not more than 13 weeks, after the Department is contacted’ is qualified for a pension on the day that they contact the Department, and this contact is acknowledged in writing, an exception may apply if:
13(3A)(e), the Secretary is satisfied that, in the special circumstances of the case, it was not reasonably practicable for the person to lodge the claim earlier.
If these criteria are met, the start date for payment is ‘the day on which the Department was contacted’.
It is accepted that it is not possible to lay down precise rules as to what constitutes ‘special circumstances’.[6] That is a question for the decision-maker to answer on the facts. The Full Court of the Federal Court suggested in Dranichnikov v Centrelink that ‘To some extent the question whether there were special circumstances must depend on how it came about that the error [omission] occurred’.[7] For a finding of ‘special circumstances’ reference is commonly made to a comment in Re Beadle and Director-General of Social Security,[8] that the circumstances must be:
‘unusual, uncommon or exceptional … That is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special’.
[6] Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at [3]; Secretary, Department of Social Security v Hales (1998) 51 ALD 695 (French J)
[7] Dranichnikov v Centrelink (2003) 75 ALD 134 at 148 (Hill J).
[8] Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at [3], approved on appeal to the Full Federal Court in Beadle v Directory-General of Social Security (1985) 60 ALR 225
The application of the law relating to ‘special circumstances’ has also been found to involve a consideration of the impact of the medical condition on the person’s ‘capacity to make rational decisions to manage their day to day affairs’.[9]
[9] Re Dean and Secretary, Department of Education, Employment and Youth Affairs [2005] AATA 586 at [57].
The Tribunal has earlier discussed the circumstances leading to Mr Cobbin’s omission to lodge his DSP application in August/September 2010. In light of those facts the Tribunal accepts that Mr Cobbin’s medical condition at that time precluded him acting ‘in his own best interests’, as evidenced by the length of time it took Mr Cobbin, an experienced builder, to renovate his house. However, on balance, the Tribunal is not satisfied that the circumstances were sufficiently ‘unusual, uncommon or exceptional’ as to prevent him making rational decisions to manage his day-to-day affairs.[10] He may not have lodged his application on time, been precluded from working assiduously and looking after himself properly, but the circumstances did not prevent him managing sales of assets, banking, paying bills and organising for his children to visit him from the USA. He was able to adequately, if intermittently, manage a number of his day-to-day affairs. Accordingly, he does not fall within the ‘special circumstances’ exception.
[10] Cf Papageorgiou and Secretary, Department of Family and Community Services [2005] AATA 465.

Exceptions in Schedule 2, Part 3 of the Act

As the exceptions in section 13 are not able to be satisfied, the Tribunal must consider the exceptions in Schedule 2, Part 3 of the Act. Schedule 2 contains detailed provisions as to the ‘start day’. Clause 11(2) of Schedule 2 is relevant. Clause 11(2) permits backdating the start date in limited circumstances. Those circumstances include that the person has become incapacitated for work as a result of a ‘medical condition’, that the person makes a claim more than 5 weeks after the day on which the incapacity begins, and ‘the medical condition was the sole or principal cause of the person's failure to make the claim within 5 weeks after the day on which the incapacity began’. [11] Backdating is possible, but only for up to 4 weeks prior to the date of claim, that is, 17 September 2010, and provided the person was qualified for the pension in that four weeks from 19 August 2010.
[11] Act Sch 2, clause 11(2)(c)(ii).
Mr Cobbin suffers from a number of medical conditions which have incapacitated him for work; those conditions have variously been said to commence from dates as early as 1998; Mr Cobbin made his claim on 17 September 2010, that is, more than five weeks after the dates his incapacities began; and he was qualified for DSP by 17 September 2010 and was so qualified in the previous four weeks. The issue is whether Mr Cobbin’s medical conditions were ‘the sole or principal cause’ of his failure ‘to make the claim within 5 weeks after the day on which the incapacity began’.
The Secretary has contended that the evidence does not support the conclusion that ‘the requirements of Schedule 2, subclause 11(2) are met’. Mr Cobbin disagrees. The period referred to in Clause 11(2) is the period from the date his incapacities began until the date he lodged his claim, that is, 17 September 2010.
There is some dispute about the date of diagnosis of Mr Cobbin’s OCD. The job capacity assessment listed 1998; Dr Kennedy noted January 2009. It was only in 2008, when his family left for the USA in August, that his marital problems had become a major difficulty. Further, it was these events which exacerbated symptoms of his OCD, leading Mr Cobbin to spend ‘a great deal of time worrying and obsessing about [his] girls’.
Mr Cobbin first began taking an anti-depressant in 2003, which could be the date his incapacity began. At that time, however, he was in the USA with his family, and according to the evidence, was operating successfully as a builder. So it appears that his condition at that time did not incapacitate him from working. However, after the difficult year in Australia in 2008, culminating with his family returning to the USA,, Dr Kennedy changed Mr Cobbin’s anti-depressant medication and increased the dose to 20mg a day. The Tribunal is satisfied that was from that time, the two conditions, OCD and depression, were noticeably disabling him from working. The Tribunal takes January 2009 as the beginning of the period for the purposes of clause 11(2).
The hurdles to Mr Cobbin satisfying the exception in clause 11(2) are that the claimed medical conditions must incapacitate the person from working, must also be ‘the sole or principal’ cause of the person’s failure to make the claim within 5 weeks of the onset of the incapacitating conditions, and must have continued from the time of onset of the conditions until 17 September 2010.
Inherent in clause 11 is the notion that it is the person’s medical conditions which are the sole or principal reason the person was prevented from working and from lodging a claim on time. In that context, the Tribunal accepts as correct the principle in Re Panke and Director-General of Social Services,[12] that:
The assessment of the degree of incapacity for work … involves two quite distinct steps – firstly an evaluation in purely medical terms of the person’s physical or mental impairment and secondly, the ascertainment of the extent to which that physical or mental impairment affects the person’s ability to engage in paid work.[13]
[12] Panke v Director-General of Social Services (1981) 4 ALD 179.
[13] Id at [66].
The medical evidence, particularly Dr Kennedy’s clinical notes, and the findings of the Job Capacity assessor confirm that Mr Cobbin had a ‘reduced work capacity as a result of hearing loss, low mood, increased anxiety and reduced physical tolerances’. The Tribunal is not satisfied, however, that his ‘reduced capacity’, was of such a nature or severity as to prevent Mr Cobbin lodging a claim form for DSP in time following his inquiries, first on 19 August 2010, and then on 1 September 2010.
At the hearing, Mr Cobbin’s evidence was that the most intense periods of his incapacity were in 2008 and 2011 while his former wife and children were living with him at Burrill Lake. That evidence is corroborated by Dr Kennedy’s clinical notes which confirm that Mr Cobbin’s visits were usually every six months, but from February to May 2008, Mr Cobbin was seeing Dr Kennedy monthly for problems concerning the issues relating to his family breakdown. He saw counsellors between six to ten times in 2008; and in 2011, Mr Cobbin had three consultations with Dr Kennedy between January and July, and had over 20 consultations with counsellors. In addition, it was in June/July 2011 that Ms James’s concern for Mr Cobbin led her to write to Dr Kennedy expressing her concern as to his possible suicidal state, following which Dr Kennedy called Mr Cobbin in for a consultation in July.
These periods in 2008 and 2011 were clearly high stress periods for Mr Cobbin. During these periods Mr Cobbin was so incapacitated by his medical conditions that he may well have been found to be incapable of lodging an application. However, these episodes of incapacity are outside the period under consideration, namely, from January 2009 until September 2010.
By contrast, between February 2009 and March 2009, Mr Cobbin visited the US where he stayed in a motel with his daughters and on occasions, his wife. Mr Cobbin testified that when his wife was not with the family he supervised his daughters, fed them and generally provided their care. Although he consulted a doctor on one occasion during that visit, he was not seeking help from counsellors, and he managed the travel arrangements, banking, and household duties involved in the care of two young children. Prior to his leaving he had been in communications with the NSW Department of Community Services concerning his daughters, and on his return, in April 2009 he wrote to Centrelink to cancel the family tax benefit and parenting payment, enquired about an alternate income support payment for himself, and did not need to make an appointment to see Dr Kennedy until July.
This evidence satisfies the Tribunal that despite his medical conditions, in the first half of 2009, it could not be said that Mr Cobbin’s medical conditions were of such moment that they incapacitated him from work and from conducting other activities such as lodging a claim for income support.
In 2010, Mr Cobbin did seek consultations every two months between February and October with Dr Kennedy, indicating his conditions were significant and he was seeing a counsellor. At each of these consultations, the clinical notes refer to discussions about medications, his referral to counselling, his depression and OCD and the need for him to have cognitive behaviour therapy. Throughout this period, Mr Cobbin was unemployed, not on income support, was in default with payments to the bank. He was also on anti-depressant medication for his medical conditions at the higher dose as prescribed by his medical practitioner.
However, he remained sufficiently motivated to make arrangements to visit the USA to see his daughters on their birthdays in February and in August in 2009, and again in February 2010, and he arranged for the girls to visit in July/August 2010. Although funding and some arrangements were made by his mother’s partner, he undertook the travel and the children’s management when he was with them. In April 2010 he made contact with his bank to see if he could negotiate financial assistance.
The next issue is whether those conditions were the sole or dominant reason Mr Cobbin did not lodge his DSP claim on time in or around September 2010. Mr Cobbin noted that at this time, although the dwelling in which he was living was ‘unsanitary’, he was showering, washing himself and his clothes, and was getting dressed. Although his mother was generally responsible for his meals, he did make tea and coffee and could drive. So although he was obsessing and could not keep his mind on things, he was, to an extent, managing his day-to-day affairs.
That is also evident from the two contacts he made with Centrelink in August and September to seek DSP. Although it was his mother, in frustration who, on the second occasion, telephoned Centrelink and put the telephone in his hand for him to speak with an officer, Mr Cobbin completed the form and noted on it that he did not need assistance to do so and he did lodge the application, although it was two days late.. So the Tribunal is not able to be satisfied that throughout this period Mr Cobbin was so disabled by his medical conditions as to be incapable of working, albeit fitfully, and incapable of applying for income support and lodging his application in time. The Tribunal notes that the tests are relatively stringent. That means his claim in 2010 cannot be backdated four weeks. As it was, his application was only 2 days late. That means his claim in 2010 cannot be backdated four weeks.
Finally, Mr Cobbin claimed that he had sought to review the decision approving his Centrelink payment ‘within 13 weeks after the notice is given’ when he contacted an officer at the Centrelink office in Ulladulla. As a consequence, he claimed that the date of effect of any ‘favourable determination resulting from review’ meant ‘the favourable determination takes effect on the day on which determination embodying the original decision took effect’ (section 109 of the Act).
Unfortunately for this argument, there has not been a ‘favourable determination on review’ in that his claim that his start date should be other than 17 September 2010 has not been successful before the Tribunal. Accordingly this section and any back payment cannot be activated.

CONCLUSION

The Tribunal is not satisfied that Mr Cobbin meets the criteria for exception under sections 13(2), 13(3A) or Schedule 2, Part 3 of the Act. Accordingly, he cannot be paid disability support pension from a date earlier than 17 September 2010. No arrears of disability support pension are payable. The decision under review is affirmed.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member.

………………….[sgd]…………………….
Associate

10 July 2012

Date(s) of hearing	29 May 2012
Date final submissions received	3 July 2012
Applicant	In person
Advocate for the Respondent	Glenda Heggen
Solicitors for the Respondent	Centrelink Program Litigation and Review