Papageorgiou and Secretary, Department of Family and Community Services

[2005] AATA 465

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 465

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/1071

GENERAL ADMINISTRATIVE  DIVISION

Re:FOTIS PAPAGEORGIOU

Applicant

And:SECRETARY,

DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:             24 May 2005

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

SOCIAL SECURITY ‑ newstart allowance – sickness allowance - start date ‑ whether backdating possible   

Social Security (Administration) Act 1999 ss11(1), 13 (1), 13(2), 13(3A), 15, 16, 41(1), 42,

cl 3(1), 11 of Schedule 2

Workplace Relations Act 1996 s170CK

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

REASONS FOR DECISION

24 May 2005  Regina Perton, Member

1.      This is an application by Fotis Papageorgiou (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 23 August 2004.  The SSAT affirmed a decision of an authorised review officer of Centrelink dated 20 July 2004 to grant newstart allowance (NSA) to the applicant from 30 April 2004 and not from an earlier date.

2.      At the hearing on 9 February 2005, the applicant represented himself.  Ms Elizabeth King, a Centrelink advocate, represented the respondent.  An interpreter in the Greek language facilitated communication.

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (the Act) (T1‑T22) (the T‑documents).  At the hearing, the applicant tendered further medical reports and documents relating to his previous employment.

BACKGROUND

4.      The applicant was born on 3 February 1960.  He was employed as a painter until 18 February 2004.  On 19 March 2004, he contacted Centrelink in relation to NSA.  Centrelink wrote to him on the same day and advised him that if he lodged a claim form on or before 2 April 2004 and met the pertinent criteria, his start date for payments would be 19 March 2004. 

5.      Centrelink sent a second letter to the applicant on 19 March 2004 advising him that an appointment had been made for him to attend a seminar entitled Preparing for Work on 29 March 2004.   The letter instructed the applicant  to advise Centrelink if he could not attend on that day, so that another date could be arranged.  The applicant was informed that failure to attend the seminar could impact on future payments.   A note on Centrelink’s records, dated 29 March 2004, indicated that the applicant did not attend the seminar.

6.      On 30 April 2004, the applicant contacted Centrelink regarding sickness allowance. He attended an interview at Centrelink on 4 May 2004 where he completed a claim for sickness allowance.  The applicant provided medical certificates which indicated that he suffered from depression and had been unfit for work from 15 February 2004 and would be so until 15 May 2004.   He also provided copies of correspondence from QBE Mercantile Mutual (QBE) concerning a claim he had made on 26 March 2004 under a personal income protection insurance policy.  In a letter dated 26 April 2004, QBE refused his claim on the basis that the medical condition for which he sought payment was in existence in the six months prior to the commencement of his insurance cover and hence not covered by the policy.

7.      On 5 May 2004, Centrelink rejected the claim for sickness allowance on the basis that the applicant did not have a job to return to.  However, under deeming provisions in the Social Security (Administration) Act 1999 (the Administration Act), the applicant was considered for NSA. On 19 May 2004, the applicant was granted NSA with effect from 30 April 2004. However, soon after he found employment again.

8.      On 11 June 2004, the applicant sought review of the decision as to the starting date of NSA, submitting that NSA should have been paid from 15 March 2004, as by that date he had used up all his sick and holiday leave.  On 20 July 2004, an authorised review officer affirmed the decision.    

9.      On 23 July 2004, the applicant sought review of the  decision by the SSAT.  The SSAT affirmed the decision on 23 August 2004.  Following the SSAT decision, the applicant lodged an application with the Tribunal on 17 September 2004.

10.     The issue before the Tribunal is whether the start date for the payment of NSA should be  earlier  than 30 April 2004.  

EVIDENCE

11.     The applicant told the Tribunal that he had been forced to take time off work because he suffered from depression.  He said that the illness had impacted on his ability to make decisions and to organise his time.   The applicant said that when he ran out of sick leave, he applied to Centrelink for sickness benefits.  He said he was advised by Centrelink that he could not get sickness benefits as he had no job to go back to and therefore he applied for NSA.  He confirmed that he received letters from Centrelink dated 19 March 2004 about filling in a claim form for NSA and the appointment scheduled for 29 March 2004.  The applicant said that on the advice of a friend who visited him around that time, he decided to lodge an insurance claim rather than pursue the Centrelink claim.  The applicant said that he regretted that decision and believed that his illness had affected his decision‑making.  He said that the insurance company rejected his claim as he had a pre‑existing condition for which he had received treatment prior to taking out the insurance policy.   The applicant said that after the insurance claim was refused, he approached Centrelink asking that they pay him from the date of the initial enquiry but this was refused.  He said that he should not be penalised for his lack of knowledge of Centrelink rules or his inability to make decisions as a result of his illness.

12.     The applicant said that his employer terminated his employment on 18 February 2004, while he was on sick leave.  He submitted that terminating a person’s employment while that person is on sick leave is a breach of the law and hence the termination was invalid.   The applicant said his last day of actual work for that employer was Friday 13 February 2004, and he was diagnosed as unfit for work on the following Sunday.  He said that there had been no discussion with his employer about termination before he took sick leave.  The applicant said that a friend rang him at home to tell him that both of them were no longer employed.  The applicant said that several other employees were terminated on the same date as he but that he was the only one on sick leave.  The applicant said that he and his wife eventually visited the employer, but that he refused to accept the separation certificate offered to him as his employer was not entitled to terminate him.  He said that he eventually received the certificate and went to his union about it but was told that it was then too late to lodge an unfair dismissal claim.

13.     The applicant said that he used up his accumulated leave before approaching Centrelink.  He expressed regret at not approaching Centrelink earlier and said that his ill health had affected his decision‑making.   He described discussions he had with staff at the Centrelink office, as he could not understand why they were suggesting newstart allowance rather than sickness allowance.  The applicant said that he has now resumed work with a new employer.

14.     On cross-examination the applicant said that he had worked with his previous employer for around 5 months from early September 2003.  He conceded that he had been taken on for a particular project.  He said that he had worked on projects for differing periods and various employers for periods ranging from a few months to a year.  He said that when he was terminated he thought that there was about another month of work on that project but that the employer had other projects underway to which he could have been transferred.  He reiterated that he should not have been terminated while on sick leave; and while others were also terminated at the same time, it was not done on the usual basis, namely last on, first off basis

15.     In response to questions by Ms King about the special circumstances he was claiming should be taken into account, the applicant stated that while he was able to lodge the insurance claim and see the union, he was confused and not in a fit state to make sensible decisions.  He said that he thought he would succeed in his insurance claim.  He described his medical condition during the period from mid‑February to May 2004, when he resumed work.  He conceded that he has been capable of paying his bills and filing the insurance claim during that period; and was able to take  short walks, but said he was not able to do much around the house to help his wife.

16.     Documentary evidence before the Tribunal, in addition to the T‑documents, included a Centrelink form entitled Employment Separation Certificate dated 11 May 2004 and completed by a Director of Global Colour Solutions Pty Ltd, the applicant’s former employer.  The form indicated that the applicant had been  employed from 3 September 2003 to 13 February 2004; and that he was terminated due to a shortage of work or redundancy.  The applicant’s treating psychologist, Emmanuel Boultadakis, provided a report dated 14 October 2004 in which he stated that on referral by the applicant’s general practitioner, he provided counselling for the applicant who was suffering from depression.  Mr Boultadakis proffered the opinion that the applicant was unable to concentrate or make personal or professional decisions between 16 February 2004 and 15 May 2004. 

CONSIDERATION OF THE ISSUES

17. Section 11(1) of the Administration Act provides that a person must make a claim for a social security payment to be eligible for that payment. Section 16 of the Administration Act sets out the steps involved in making a claim.

18. Section 15 of the Administration Act allows a person to be considered for a social security payment of a different category to the one for which he has applied, if he does not qualify for the one he applied for, but is eligible for another. In this case, the applicant applied for sickness benefits, for which he was found to be ineligible. Centrelink then considered the applicant for NSA.

19. Section 41(1) of the Administration Act provides that a social security payment becomes payable on the applicant’s start day. Section 42 provides that the start day is calculated in accordance with clause 3(1) of Schedule 2 of the Administration 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.

20. Section 13(1) of the Administration Act provides a mechanism for deeming that a person’s start day is the date the person contacts Centrelink:

13.(1)      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; 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 social security payment within 14 days after the Department is contacted;

the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.

21.     The start date can be backdated up to 13 weeks where the applicant’s medical condition or special circumstances have impacted on his ability to lodge the claim within the 14 day period.

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.(3A)    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; 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 social security payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and

(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;

the person is taken to have made a claim for the social security payment on the day on which the Department was contacted

22. There are also provisions in Clause 11 of Schedule 2 to the Administration Act that allow for backdating the payment of sickness benefits:

11.(1)      If:

(a)a person becomes incapacitated for work as a result of a medical condition; and

(b)the person makes a claim for a benefit or pension within 5 weeks after the day on which the incapacity begins; and

(c)the person continues to suffer the medical condition from the day on which the incapacity begins until the claim is made;

the person’s start day in relation to the benefit or pension is the first day on which the person was qualified for the benefit or pension in the period starting on the day on which the incapacity began and ending on the day on which the claim was made.

11.(2)      If:

(a)a person becomes incapacitated for work as a result of a medical condition; and

(b)the person makes a claim for a benefit or pension more than 5 weeks after the day on which the incapacity begins; and

(c)the Secretary is satisfied that:

(i)the person has continued to suffer the medical condition from the day on which the incapacity began until the claim was made; and

(ii)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;

the person’s start day in relation to the pension or benefit is the first day on which the person was qualified for the benefit or pension in the period of 4 weeks ending immediately before the day on which the claim was made.

23.     The applicant presented two lines of argument.  He submitted that he had not been lawfully terminated by his employer so he should therefore have been considered eligible for sickness benefit.  In the alternative, he suggested that the NSA payment should be backdated to a date earlier than 30 April 2004 as his illness and/or his special circumstances were the cause of his failure to follow up the initial Centrelink contact of 19 March 2004.

24. In the respondent's statement of facts and contentions dated 3 February 2005, Ms King stated that the applicant cannot satisfy the requirements of Clause 11(1) above, because he did not lodge his claim within 5 weeks of becoming incapacitated, that date being 15 February 2004. Ms King also contended that the applicant’s incapacity was not the sole cause of his failure to lodge the claim as he decided to lodge an insurance claim in preference to a Centrelink application form sent to him on 19 March 2004 and hence he did not meet Clause 11(2). She submitted that the applicant’s depression had not prevented him from making an insurance claim or paying his bills and therefore he had not been prevented from making the Centrelink application earlier than 30 April 2004.

25. In a further written submission dated 23 February 2005, Ms King referred to s 170CK of the Workplace Relations Act 1996 which sets out the grounds on which employment is not to be terminated, including where there is a temporary absence  from work because of illness or injury.  She submitted that while the respondent  accepted that the applicant was temporarily absent from his work from 15 February 2004, and that his employment had been terminated on 18 February 2004, there was no evidence that the termination was due to his illness.  She also submitted that the applicant’s circumstances were not special circumstances taking into account the term’s definition in Re Beadle and Director-General of Social Security (1984) 6 ALD 1. She pointed to the evidence given at the hearing that a number of other employees were terminated at the same time as the applicant and for the same reason, namely that the project that they were working on was coming to an end. She submitted that the applicant knew that he was employed for the length of the project. She stated that the applicant had decided to pursue the insurance claim rather than the social security payment as it would have resulted in a better financial outcome for him, and contended that his depression was not the reason for that choice being made.

26.     In reaching its decision  the Tribunal takes into account the written and oral evidence.  The Tribunal accepts that the applicant was suffering from depression and was unfit for work from 15 February 2004.   However, the Tribunal is not satisfied that the applicant was terminated solely due to his illness.  The applicant conceded that other employees were also terminated and that he was working on a project that had a finite life.    

27. The applicant’s treating psychologist and his doctor stated that the applicant’s decision‑making ability was affected by his depression. While the Tribunal accepts their evidence about the impact of depression on the applicant, the Tribunal notes that between 15 February 2004 and 30 April 2004 the applicant was able to contact Centrelink on 19 March 2004, visit his employer to dispute his termination, lodge his insurance claim, take walks outside the house and continue to pay the family’s bills. The applicant told the Tribunal that he regretted that he took his friend’s advice to pursue an insurance claim, rather than seek the lesser benefit he would have obtained through Centrelink. However, the making of an unwise decision is not a sufficient ground for the Tribunal to find the applicant was prevented from pursuing the Centrelink claim due to his illness. The Tribunal is not satisfied that the applicant’s medical condition had a significant adverse effect on his ability to lodge the claim with Centrelink earlier than 30 April 2004. He is therefore unable to take advantage of the provisions of s 13(2) of the Administration Act.

28. Section 13(3A) allows a claim to be backdated up to 13 weeks after the applicant contacted Centrelink, where the decision‑maker is satisfied that, in the special circumstances of the case, it was not reasonably practicable for the person to lodge the claim earlier. For the Tribunal, or an earlier decision‑maker, to use the discretion provided in s 13(3A), it must be satisfied that there is something to make the case stand out from the usual or the ordinary. In Re Beadle and Director‑General of Social Security (1984) 6 ALD 1 the Tribunal held that: the special circumstances referred to in the Act must be unusual, uncommon or exceptional. The Tribunal accepts that the applicant was suffering from an illness, but after considering all relevant matters and viewing the applicant’s case in its entirety, the Tribunal is not satisfied that the applicant’s circumstances were unusual, uncommon or exceptional. Therefore, it is not appropriate for the Tribunal to exercise the discretion under s 13(3A) of the Act.

29. The applicant is unable to take advantage of the provisions of clause 11(1) of Schedule 2 to the Administration Act as he did not lodge his claim within 5 weeks of becoming incapacitated for work. His medical certificates attest that he was unfit for work from 15 February 2004. The claim was lodged on 4 May 2004, which is more than 5 weeks later. The Tribunal also finds that the applicant fails to meet the criteria set out in clause 11(2), as it is not satisfied that the applicant’s medical condition was the sole or principal cause of his failure to make the claim within 5 weeks of which he became incapacitated for work.

30. Under clause 3(1) of Schedule 2 to the Administration Act, the applicant’s start day in relation to NSA is the day on which he made the claim. However, under s 13(1) of the Administration Act he is deemed to have made the claim on the day on which he actually contacted Centrelink, which was 30 April 2004.

31.     For these reasons the Tribunal finds that the earliest date on and from which the applicant could be paid NSA is 30 April 2004.

DECISION

32.     The Tribunal affirms the decision under review.

I certify that the thirty-two [32] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:   9 February 2005

Date of decision:  24 May 2005
Advocate for the applicant:          Self-represented
Advocate for the respondent:       Ms E King, Centrelink