PAUL KAVANAGH and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 376

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 376

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/5500

GENERAL ADMINISTRATIVE DIVISION		)
Re		PAUL KAVANAGH

Applicant

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

Respondent

DECISION

Tribunal Dr M Denovan, Member

Date20 May 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

................[Sgd]..............................

Member

CATCHWORDS

SOCIAL SECURITY – Benefits and entitlements – Disability support pension – Underpayment of benefit entitlement – Earliest date that benefit could be paid to applicant – No basis to backdate payments – Decision affirmed.

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security (Administration) Act 1999 (Cth)

Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367

REASONS FOR DECISION

20 May 2010	Dr M Denovan, Member
BACKGROUND

1.      Paul Kavanagh, the applicant, was granted Disability Support Pension (DSP) on 2 September 2009, with effect from 2 July 2009.  Mr Kavanagh’s legal representative contacted Centrelink about lodging a claim on 2 July 2009.

2.      Mr Kavanagh had made an earlier claim for DSP on 23 July 2008 and he believes that his DSP should have been granted on or before that date.  The decision to reject the first claim was affirmed by both an authorised review officer and the Social Security Appeals Tribunal (SSAT).  Mr Kavanagh applied for review by the Administrative Appeals Tribunal (AAT), but subsequently withdrew that application on 13 August 2009.  He submitted the application, the subject of this review on 18 November 2009.   

LEGISLATIVE SCHEME

3.      The rules for working out the start day for a social security payment are contained in the Social Security (Administration) Act 1999 (Cth). Provided a person is qualified for the payment on the day on which the claim is made, then the claim date is the date that the payment commences from.

4.      If a person contacts Centrelink in relation to a claim, and then makes written contact and claim within 14 days, then the claim is deemed to have been made on the day of contact.

ISSUE

5.      The issue is whether Mr Kavanagh can be paid DSP from a date earlier than 2 July 2009.

can mr kavanagh be paid dsp from a date earlier than 2 july 2009?

6.      Mr Kavanagh told me that he was pressured into withdrawing his application to the AAT in relation to his earlier claim for DSP.  He said that at the time he had only recently been released from hospital and had been treated for depression.  He believes he was not capable of acting in his own best interests at the time he withdrew his application.  He claims that his depression was just as bad as it is now at the time of his initial application on 23 July 2008.  He argues that he should therefore have the DSP backdated to that time.

7.      Mr Kavanagh’s first application for DSP was rejected on the basis that Mr Kavanagh did not, within 13 weeks of his claim, have a condition that had been fully documented, investigated, diagnosed,  treated and stabilised.

8.      Mr Kavanagh’s application relating to this first claim was dismissed by the AAT on 13 August 2009.  The Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides that when an application is dismissed, the proceeding to which the application relates is taken to be concluded.

9.      If an application is dismissed in error, the Tribunal may reinstate the application.  What constituted an error for the purpose of exercising that discretion was considered in the matter of Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367, in which at 29 it was held:

We do not think it is necessary, in order to enliven the Tribunal's power under s.42A(10), that the Tribunal, or a member or employee of the Tribunal, should have been at fault in relation to the dismissal. The fault may have lain elsewhere, provided it induced the error. For example, because of a mistake as to his or her instructions, a solicitor or other representative of a party might have wrongly consented to a dismissal order or filed a notice of discontinuance. No fault would attach to the Tribunal; but, if the solicitor's mistake induced the dismissal of the action, it could properly be said the application had been "dismissed in error".

10.     Mr Kavanagh believes his decision to withdraw was an error.  However, there is no evidence that the Tribunal, his legal adviser, or anyone else committed an error when advising him to withdraw his application.  There are no grounds to exercise the discretion that would allow the first application to be reinstated, and therefore that matter is not before me today. 

11.     The evidence before me is that the first report of Mr Kavanagh having a medical condition that was fully diagnosed, treated and stabilised was that of psychologist Mark Gribbie dated 22 July 2009.  As this was not within 13 weeks of Mr Kavanagh’s first application for DSP it is very unlikely that Mr Kavanagh has been disadvantaged by his decision to withdraw the first application.

12.      Mr Kavanagh has been paid DSP from 2 July 2009.  That is the first date he made contact with Centrelink in relation to his second claim for DSP, and the earliest date that his benefit could have been paid under the existing legislative framework.

13.     I affirm the decision under review.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

Signed: .............................[Sgd]................................................
  Kate Slack, Research Associate

Date/s of Hearing  28 April 2010
Date of Decision  20 May 2010
The Applicant was assisted by Gabriel Feron
For the Respondent                  Rick McQuinlan, departmental advocate