Phillips and Secretary, Department of Family and Community Servic Es
[2004] AATA 109
•6 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 109
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1992/416
GENERAL ADMINISTRATIVE DIVISION ) Re GAIL ROSLYNNE PHILLIPS Applicant
And
SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Senior Member K L Beddoe
Dr K P Kennedy, Member
Ms J Cowdroy, MemberDate6 February 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ..................(Sgd).......................
KL Beddoe
Senior Member
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 109
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1994/552
GENERAL ADMINISTRATIVE DIVISION ) Re GAIL ROSLYNNE PHILLIPS Applicant
And
COMMISSIONER FOR SUPERANNUATION
Respondent
DECISION
Tribunal Senior Member K L Beddoe
Dr K P Kennedy, Member
Ms J Cowdroy, MemberDate6 February 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ..................(Sgd).......................
KL Beddoe
Senior Member
CATCHWORDS
SUPERANNUATION – benefits and entitlements – applicant retired on invalidity grounds - when benefits payable – Benefit Classification Certificate - investigation in progress as to whether applicant failed to furnish information or furnished false information in connection with a medical examination - section 16(11) of the Superannuation Act 1976 – benefits under section 66(1) of the Act payable even if investigation not completed – decision affirmed
SOCIAL SECURITY – benefits and entitlements – sickness benefits – benefits ceased when applicant failed to provide medical certificate – back-dating of payments when reinstated – whether section 159(5) of the Social Security Act 1947 applies – no other claim under an Act administered by the Commonwealth for a similar benefit made – no discretion to back-date further than four weeks prior to claim – decision affirmed
Superannuation Act 1976, ss 16, 66 and 158
Social Security Act 1947, s 159(5)
Re Phillips and Secretary, Department of Social Security (AAT No 8826, 7 July 1993)
Re Phillips and Commissioner for Superannuation [2003] AATA 11
REASONS FOR DECISION
6 February 2004 Senior Member K L Beddoe
Dr K P Kennedy, Member
Ms J Cowdroy, Member1. Ms Phillips seeks review of two decisions, a decision by the Commissioner for Superannuation in relation to the payment of an invalidity pension to her, and a decision by Centrelink in relation to the back-payment of sickness benefits to her. The applications for review were dealt with by the Tribunal on 22 August 2003 in Brisbane. The applications were, in some respects, dealt with separately, but there are issues common to both applications and for this reason one set of reasons has been prepared in relation to both applications.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T document) in relation to each of the applications for review, as well as a number of documentary exhibits. At the hearing, Ms Phillips gave evidence and represented herself. The Commissioner for Superannuation was represented by Mr Whithear, Solicitor, and the Secretary, Department of Family and Community Services was represented by Mr McQuinlan, a Departmental Advocate. Following the hearing all parties filed written submissions as follows:
(a) applicant (5.9.03 and 6.11.03)
(b) Secretary (1.10.03)
(c) Commissioner (13.11.03)
Background
3. On 11 August 1992, Ms Phillips applied to this Tribunal for a review of a decision of the Social Security Appeals Tribunal dated 21 July 1992 (Q1992/416). That decision affirmed the Department of Social Security’s decision to cancel Ms Phillips’ sickness benefit from 17 December 1988, and not pay arrears of sickness benefit prior to 24 May 1989. The application for review came before the Tribunal for hearing in 1993.
4. On 7 July 1993, the Tribunal (Deputy President Forgie, Miss Brennan and Dr Kennedy, Members) delivered a decision on Ms Phillips’ application: see Re Phillips and Secretary, Department of Social Security (AAT No 8826, 7 July 1993). The Tribunal made the following findings of fact in relation to this matter:
“5. Ms Phillips is trained as a High School teacher and she pursued that career for a number of years. At the beginning of 1981, she sat for the entrance examination for the Commonwealth Public Service. During 1981, she was offered two positions but she did not accept them. She worked on a part time basis at the Coorparoo College of Technical and Further Education during 1982. She had understood that the position would be permanent but the venue was changed and she then worked for only seven hours per week after the College changed the venue of the course she taught.
6. Following this set back, Ms Phillips re-activated her application to join the Public Service and she was offered a position from 14 February 1983 with the Australian Taxation Office. After completing a probationary period, Ms Phillips was confirmed as a permanent officer of the Public Service. She transferred to the Department of Employment and Industrial Relations (‘DEIR’). For the purposes of these proceedings, it suffices to say that her time with DEIR was not a happy experience for her. The upshot was that she lodged grievances with the Merit Protection Review Agency and she was referred by DEIR to the Commonwealth Medical Officer (‘the CMO’).
7. After a period of sick leave without pay, Ms Phillips, who had lodged a claim for sickness benefit with the Department on 22 January 1987, was granted sickness benefit with effect from 13 January 1987 (T documents, pages 12-14). In a statement dated 13 March 1987, Ms Phillips notified the Department that she was entitled to be paid sick leave from 16 February 1987 to 13 March 1987 and so had been overpaid sickness benefit for that period (T documents, page 15). Ms Phillips lodged a further claim for sickness benefit on 6 April 1987 and payment of the benefit was re-commenced from 4 March 1987. The decision to do so was made on 7 April 1987 (T documents, pages 16-20).
8. Ms Phillips continued on sick leave without pay for the rest of 1987 and, on 13 January 1988 the CMO recommended that she be invalided out of the Public Service. She was offered retirement on the grounds of invalidity but refused unless the grievance was heard. She understood DEIR to assure her that her grievance would be taken to its conclusion. AGRBO then wrote to her on 12 April 1988 advising her that the Department of Eduction and Training (‘DEET’) (which had by now taken over the functions of DEIR) had sent an application form on her behalf regarding her possible benefit entitlement on invalidity retirement under the Superannuation Act 1976 (‘the Superannuation Act’). AGRBO advised her that, in order to determine her entitlement, it needed to investigate her case and asked her to sign authorities to approach medical practitioners who had treated her (T documents page 21).
9. Ms Phillips was notified by DEET in a letter dated 4 July 1988 that she had been retired on the grounds of invalidity pursuant to section 76W of the Superannuation Act with effect after 1 March 1988 and was advised that her salary entitlements amounted to $4,455.64 (T documents, pages 26-27).
10. In a letter dated 2 August 1988, Ms Phillips advised the Department of this payment and how she had spent the money on long-standing debts and necessary current expenses (T documents, pages 28-29). After completing, again on 2 August 1988, a questionnaire relating to her financial position, Ms Phillips submitted a medical certificate in a letter dated 1 November 1988, stating her to be unfit for duty up to an including 16 December 1988. She also advised them that there had been no determination of her superannuation payments and that the sickness benefit was her sole source of income (T documents, page 32). On 1 November 1988, AGRBO wrote to Ms Phillips asking her for her authority to approach medical practitioners in order to determine her benefit entitlement after investigating her case in accordance with the provisions of sub-section 16(11) of the Superannuation Act. AGRBO went on to say that, pending completion of that investigation, arrangements were being made to pay an interim benefit (part of Exhibit 2).
11. The payment of the interim benefit was dealt with in a letter from AGRBO on 14 November 1988. That benefit was paid at the rate of $13,776.77 per year (part of Exhibit 2). There has been correspondence between Ms Phillips and AGRBO regarding the payment of this benefit and the issues concerning Ms Phillips seem still to be the subject of debate between them. We cannot explore these issues further for Ms Phillps and AGRBO are still considering the issues between them and AGRBO has not yet made a decision which may be reviewed by this Tribunal pursuant to the provisions of the Superannuation Act and the AAT Act. Only time will tell whether AGRBO will make a decision with which Ms Phillips is satisfied and whether she wishes to pursue the matter further in this Tribunal.”
5. The Tribunal considered that there were three issues to be determined in the application for review:
(a)Whether the sickness benefit should have been cancelled;
(b)Whether arrears of sickness benefits should have been paid for the period 17 December 1988 to 23 May 1989, after Ms Phillips re-applied for sickness benefits on 21 June 1989; and
(c)Whether Ms Phillips had made any other claim, dated prior to 21 June 1989, which could be regarded as a claim for sickness benefit.
6. In relation to the first issue, the Tribunal determined that, since Ms Phillips had failed to provide the Department with a medical certificate, the decision to cancel her pension after 16 December 1988 was properly made.
7. In relation to the second issue, the Tribunal determined that there was no basis under section 125 of the Social Security Act 1947 for Ms Phillips to receive arrears of sickness benefits, for the period 17 December 1988 to 20 June 1989, back-dated to a date earlier than 24 May 1989.
8. In relation to the final issue, that is, whether Ms Phillips had made any other claim, dated prior to 21 June 1989, which could be regarded as a claim for sickness benefit, the Tribunal found that it was unable to determine the issue until such time as the Commissioner for Superannuation had made a decision as to Ms Phillips’ entitlement to benefits under the Superannuation Act 1976. The proceedings were therefore adjourned to a date to be fixed for further consideration on this issue. It is this issue which is before the present Tribunal for consideration.
9. On 12 October 1993, a delegate, on behalf of the Commissioner for Superannuation, affirmed a decision to commence payments of invalidity pension to Ms Phillips under subsection 66(1) of the Superannuation Act 1976 following her invalidity retirement on 1 March 1988. Ms Phillips sought review of that decision on 18 August 1994 (Q1994/552). As the application was lodged outside the prescribed timeframe, Ms Phillips sought and was granted an extension of time in which to lodge her application for review.
10. The general facts surrounding the applications for review were discussed by the previous Tribunal, as set out above. For completeness, however, the facts surrounding the superannuation application will be set out more fully below:
(a)Ms Phillips, who was born on 2 December 1949, became an “eligible employee” under the Superannuation Act 1976 on 14 February 1983 when she commenced employment with the Commonwealth Public Service;
(b)On 4 January 1984, following a medical examination by the Chief Medical Officer (“CMO”) in July 1983, a Benefit Classification Certificate (“BCC”), pursuant to section 16(4) of the Superannuation Act 1976, was issued by the Commissioner in relation to Ms Phillips for the condition “Allergic Rhinitis” (Q1994/552: T6/27);
(c)In 1985, the applicant sought compensation for the contraction of asthma as a result of being exposed to smoking in her workplace (Q1994/552: T8/31). Liability for this condition was accepted, with the date of injury being set as 3 June 1983 (the date of initial diagnosis) (Q1994/552: T8/31);
(d)On 16 November 1986, Ms Phillips wrote to the Commissioner seeking that the BCC in relation to allergic rhinitis be revoked pursuant to section 16(6) of the Superannuation Act (Q1994/552: T8/30-31);
(e)On 8 January 1987, the Commissioner wrote to Ms Phillips advising that a medical report would need to be obtained from her private medical practitioner before the issue of the revocation of her BCC could be considered (the request for a medical report being authorised by section 16(6) of the Act). Ms Phillips was requested to complete and return an authorisation for this purpose (Q1994/552: T9/35). The Tribunal notes that there is no correspondence in the T documents to indicate Ms Phillips provided that authorisation;
(f)From January 1987, the applicant took sick leave from work, which continued until she was retired from the public service on the grounds of invalidity. The date of effect of her retirement was determined to be 1 March 1998 by the Department of Employment, Education and Training (her then employer). The CMO recommended Ms Phillips’ retirement on the basis of a personality disorder (obsessive compulsive disorder) (see Q1994/552: T11/37-39);
(g)Ms Phillips objected to the date of her retirement, and sought a review of that decision by the Merit Protection and Review Agency. Ms Phillips did not want any action taken in relation to any possible superannuation entitlements payable to her until after her grievance had been resolved, in light of the possibility that the date of her retirement may change following the review (see, for example, Q1994/552: T14/56);
(h)On 12 April 1988, the Commissioner wrote to Ms Phillips advising they had received an application form from DEET on her behalf regarding possible benefit entitlement on invalidity retirement. The letter asked Ms Phillips to sign and return authorities to enable them to investigate her case in accordance with section 16(11) of the Superannuation Act 1976 (Q1994/552: T13/54);
(i)On 21 July 1988, Ms Phillips wrote to the Commissioner in response to the above letter. Ms Phillips’ letter relevantly provides (Q1994/552: T14/55-57):
“I have experienced extreme concern over the way that Personnel have handled the process of my invalidity retirement. Though I was retired on 13 January 1988 (CMO’s decision), and I signed consent to invalidity on 10 February 1988, it has taken my Personnel unit six months to process monies due to me, and I only recently received a cheque for the cash equivalent of Recreation Leave credits and pro-rata Long-service Leave credits.
As my financial situation has been acute for over a year now (car off the road, sale of personal jewellery, food vouchers received from a local charity group), this delay in the processing of monies due to me has caused me particular added concern (eg the recent serving of a plaint on me by Bankcard).
In respect of the matter of my invalidity retirement I would advise that I have initiated a grievance approach to the Merit Protection and Review Agency in Canberra… A point of contention amongst others, will be the date of retirement which Personnel arbitrarily selected without any consideration, or even acknowledgment, of the date which I selected. Thus, in respect of my possible benefit entitlement, there could be no real decision until this grievance matter is dealt with.
However, I realize that your investigation into my prior medical history, by approach to my doctors, etc, can proceed regardless of the above, so I will attempt to follow this letter with a full letter regarding prior medical history as soon as possible…”
(j)Despite the above letter, the authorisations were not provided (Q1994/552: T2/5). Further requests were made for the applicant to complete and return the necessary authorisations in September and again in November 1988 (Q1994/552: T2/5);
(k)On 7 October 1988, DEET forwarded to the Commissioner documents concerning Ms Phillips’ retirement, and advised that the applicant had not signed and returned a benefit application form (Q1994/552: T2/5);
(l)On 1 November 1988, the Commissioner wrote to Ms Phillips advising:
“Pending completion of the investigation [under section 16(11) of the Act], arrangements are being made to pay you an interim benefit. Further advice will be forwarded to you regarding the interim benefit and the outcome of the investigation.”
(m)On 4 November 1988, by way of interim benefit, payment of invalidity pension at the maximum rate to which she was entitled under section 66(1) of the Superannuation Act was authorised and Ms Phillips was advised of this decision by letter dated 14 November 1988 (Q1994/552: T2/5). This is the decision which, following internal reconsideration on 12 October 1993, is the subject of the present review (Q1994/552);
(n)Ms Phillips provided the authorisations necessary for the section 16(11) investigation under cover of letter dated 8 November 1988. In that letter, Ms Phillips stated (Q1994/552: T2/7; T19/82-99):
“I do not see how it would be possible to determine any benefit (interim or otherwise, or lump sum), when the actual date of retirement is under contest as a matter of grievance.”
(o)On 13 March 1990, a delegate of the Commissioner determined that Ms Phillips was a person to whom subsections 66(2) and 16(11) of the Superannuation Act applied, and therefore her entitlement to a benefit under the Act was to be reduced on medical grounds.
11. At this point, some discussion is necessary of the decision referred to in paragraph (o) above. On 13 March 1990, following Ms Phillips’ retirement on invalidity grounds, a delegate of the Commissioner determined that:
§the applicant had failed to give information that she was required to give or gave false or misleading information in connection with the medical questionnaire and examination completed on 14 July 1983 (see paragraph (b) above);
§if she had not failed to give that information or had not given that false or misleading information, then the BCC issued in respect of her would have specified the conditions of schizo-affective disorder and allergic rhinitis;
§a substitute BCC, pursuant to section 16(11) of the Superannuation Act 1976, specifying the conditions of schizo-affective disorder and allergic rhinitis was to be issued effective from 4 January 1984; and
§the incapacity which was the ground for her retirement was caused, or was substantially contributed to, by the schizo-affective disorder specified in the BCC, or by a condition or conditions connected with that condition.
12. That decision was affirmed on reconsideration by another delegate on 29 March 2000, some ten years after the original decision. On 30 March 2000, Ms Phillips sought review of this decision by the Tribunal. That application for review was heard on 26 and 27 June 2002. On 8 January 2003, the Tribunal (constituted by Deputy President Muller, Mr Kenny and Mr McCabe, Members) varied the decision under review and determined that (Re Phillips and Commissioner for Superannuation [2003] AATA 11):
(i)the applicant failed to give information that she was required to give or gave false or misleading information in connection with the medical questionnaire completed on 14 July 1983;
(ii)if she had not failed to give that information or had not given that false or misleading information then the BCC issued in respect of her would have specified the additional conditions of personality disorder and major depressive disorder in addition to allergic rhinitis;
(iii)a substitute BCC specifying personality disorder and major depressive disorder be issued effective from 4 January 1984; and
(iv)the incapacity which was the ground for the applicant’s retirement, namely, obsessive compulsive disorder, was caused, or was substantially contributed to by the condition or conditions specified in the BCC, or was connected with either or both of such conditions.
Issues Before the Tribunal
13. There are two issues before this Tribunal:
(1)In Q1994/552: Whether the decision of the Commissioner for Superannuation to pay the applicant an interim benefit, pursuant to the provisions of the Superannuation Act 1976, by way of pension at the rate of $13,776.77 per annum was properly made; and
(2)In Q1992/416: Whether Ms Phillips had made any other claim, dated prior to 21 June 1989, which could be regarded as a claim for sickness benefit pursuant to section 159(5) of the Social Security Act 1947.
Legislative Framework
14. In relation to Q1994/552, the Superannuation Act 1976 relevantly provided as follows:
“16(2) The Commissioner may, for the purposes of this section, require a person (other than a person to whom section 184 applies), who proposes to become or becomes an eligible employee to undergo, within such period as the Commissioner specifies, such medical examination or examinations by an approved medical practitioner as the Commissioner determines.
…
16(4) The Commissioner shall consider the report or reports, and such other matters (if any) as the Commissioner considers relevant, and, if he is of the opinion that the person is not likely, by reason of or for a reason connected with a physical or mental condition or conditions referred to in the report or reports, to continue to be an eligible employee until the person attains his maximum retiring age, the Commissioner shall issue a benefit classification certificate to that effect, being a certificate in which the relevant condition or conditions are specified.
…
16(11) Where –
(a)a person ceases to be an eligible employee by reason of death or retirement on the grounds of invalidity;
(b)his period of contributory service is less than 20 years and, on the day on which he ceases to be an eligible employee, he has not attained his maximum retiring age;
(c)a benefit classification certificate is not in force in respect of the person immediately before his death or retirement or, if a benefit classification certificate is in force in respect of him at that time, the Commissioner is not of the opinion that the death or incapacity which was the ground for his retirement was caused, or substantially contributed to, by a physical or mental condition or conditions of the person specified in the certificate, or by a physical or mental condition or conditions connected with such a condition or such conditions; and
(d)the Commissioner is satisfied –
(i)that, at or in connection with a medication examination which the person was required to undergo under this section, the person failed to furnish any information required to be furnished by him or furnished false information; and
(ii)that, if the person had not failed to furnish that information or had not furnished that false information, there would have been in force in respect of the person, immediately before his death or retirement, a benefit classification certificate in which there would have been specified the physical or mental condition or conditions which caused or substantially contributed to, the death or retirement, or a physical or mental condition or conditions connected with such a condition or such conditions,
the Commissioner shall issue in respect of the person a benefit classification certificate in which there is or are specified the physical or mental condition or conditions of the person which, in the opinion of the Commissioner –
(e)in the case where a benefit classification certificate is in force in respect of the person at the time he dies or retires – would have been the physical or mental condition or conditions of the person specified in the certificate at that time; or
(f)in any other case – would have been the physical or mental condition or conditions of the person specified, at the time the person dies or retires, in the benefit classification certificate that would have been in force in respect of the person,
if the person had not failed to furnish that information or had not furnished that false information and, for the purposes of this Act, the certificate shall be deemed to have been in force in respect of the person immediately prior to his death or retirement.
…
66(1) Subject to subsections (3), (3A) and (4) of this section and to section 79, where a person ceases to be an eligible employee by reason of retirement on the ground of invalidity before attaining his maximum retiring age then, except in a case where subsection (2) of this section applies, the person is entitled –
(a)if the person does not make an election under section 68 or 69 – to invalidity pension in accordance with section 67 and, where the person has paid supplementary contributions, a lump sum benefit in accordance with that section;
(b)if the person makes an election under section 68 – to invalidity pension, and a lump sum benefit, in accordance with that section; or
(c)if the person is entitled to make an election under section 69 and makes such an election – to a lump sum benefit in accordance with that section.
66(2) Subject to subsections (3), (3A) and (4) of this section and section 79 where –
(a)a person ceases to be an eligible employee by reason of retirement on the ground of invalidity before attaining his maximum retiring age;
(b)there was in force in respect of the person, immediately before the person’s retirement, a benefit classification certificate; and
(c)the Commissioner is of the opinion that the incapacity which was the ground for his retirement was caused, or was substantially contributed to, by a physical or mental condition or conditions specified in the certificate or by a physical or mental condition or conditions connected with such a condition or such conditions, the person is entitled –
(d) where the period of contributory service of the person is not less than 8 years-
(i)if the person does not make an election under section 71 or 72 to invalidity pension in accordance with section 70 and, where the person has paid supplementary contributions, a lump sum benefit in accordance with that section;
(ii)if the person makes an election under section 71 – to invalidity pension, and a lump sum benefit, in accordance with that section; or
(iii)if the person is entitled to make an election under section 72 and makes such an election – to a lump sum benefit in accordance with that section; or
(e)where the period of contributory service of the person is less than 8 years – to a lump sum benefit in accordance with section 73.
…
73(1) This section applies to a person –
(a) who is entitled to an invalidity benefit by virtue of sub-section 66(2); and
(b) whose period of contributory service is less than 8 years.
73(2) The lump sum benefit to which a person to whom this section applies is entitled to an amount equal to which is the greater of –
(a) the sum of –
(i)3½ times the amount of the person’s accumulated basic contributions; and
(ii)the amount of the person’s accumulated supplementary contributions (if any); or
(b) the sum of –
(i)one-half of the amount that is the amount per annum of the person’s final annual rate of salary; and
(ii)the amount of the person’s accumulated supplementary contributions (if any).
…
158 Where a person has become entitled to a benefit under this Act, but the payment of the benefit cannot be made or commence to be made by reason that the rate or the amount of that benefit has not been ascertained, the Commissioner may, upon application in writing being made to him, direct that an interim payment or interim payments be made to the person, at such rate or rates, or in such amount or amounts, as he determines, and any interim payment so made shall be deemed to be a payment made in respect of that benefit. …”
15. In relation to Q1992/416, the relevant provision of the Social Security Act 1947 is subsection 159(5) which provided:
“Where –
(a)a claim is made for the payment to a person of a pension, allowance, benefit or other payment under this Act, under another Act or under a program administered by the Commonwealth; and
(b)the Secretary considers it reasonable that the claim should be treated as if it were a claim for the payment to the person of some other pension, allowance or benefit (being a pension, allowance or benefit under this Act that is similar in character to the pension, allowance, benefit or other payment to which the claim relates and for which the person, in the circumstances, might properly have made a claim),
the Secretary may, if a claim is lodged for the payment to the person of that other pension, allowance or benefit, treat the first-mentioned claim as if it were a claim for that other pension, allowance or benefit, and, where the Secretary does so, the first-mentioned claim shall be deemed to be a claim, made and lodged in accordance with the requirements of the Act and containing the particulars set out in the second-mentioned claim, for the payment to the person of that other pension, allowance or benefit.”
Consideration - Superannuation Matter
16. It is clear now, in light of the decision of the Tribunal of 8 January 2003 (Re Phillips and Commissioner for Superannuation [2003] AATA 11), that Ms Phillips’ entitlements under the Superannuation Act 1976 are governed by sections 66(2) and 73(2) of the Act. She is entitled only to a lump sum payment in accordance with those provisions. But what was the case on 1 March 1988 when she ceased to be an “eligible employee”?
17. At the time the applicant was retired on invalidity grounds, the BCC in force in relation to her referred only to allergic rhinitis. Ms Phillips was retired as a result of a psychiatric condition, and therefore, prima facie, there was no connection between her retirement and the condition listed in her BCC. As such, her entitlement to benefits under the Act, at that time, properly fell within section 66(1) of the Act.
18. However, the Commissioner for Superannuation decided that an investigation should be conducted, under section 16(11) of the Act, to determine whether the applicant’s psychiatric condition should have been included on her BCC. That investigation took some time to complete, and a decision was not finally made on the issue until 1990 (with the review process being finalised in early 2003).
19. In a letter dated 21 July 1988, the applicant had referred to “acute” financial hardship she had been experiencing. It would seem that this letter may have been taken by the Commissioner’s delegate as a request for payment of an interim benefit. Under section 158 of the Superannuation Act 1976, the Commissioner, upon a written application, may direct that an interim payment or payments be made to a person where that person is entitled to a benefit under the Act, but the benefit cannot be paid because the rate or amount of that benefit has not been ascertained. In any event, a decision was made, on 4 November 1988, and communicated to the applicant by letter dated 14 November 1988, to pay an interim benefit to her, by way of invalidity pension payments pursuant to section 66(1) of the Act.
20. The applicant contends that the interim benefit should not have been paid as she had never made a written application to the Commissioner requesting such a benefit. In fact, she says, she did not make a request for the payment of benefits at all as she did not consider the amount of her entitlement could be calculated until her grievance regarding the date of retirement had been resolved.
21. The Tribunal agrees with the applicant on this point. Her letter of 21 July 1988, although mentioning her financial hardship, cannot be considered a request under section 158 of the Act. There is no direct request for consideration of the payment of an interim benefit, and, in fact, later in the letter the applicant indicates (a perhaps mistaken belief) that her benefit entitlements could not be paid until her grievance as to the retirement date was resolved. She did not seek interim benefits at all. As the Commissioner’s discretion in section 158 is reliant upon a written request, it could not and should not have been exercised in this case.
22. On review of the decision of 4 November 1988, however, the authorised review officer determined that the decision to pay Ms Phillips’ benefit was based on section 66(1) of the Act (see Q1994/552: T2). It is this decision, dated 12 October 1993, which is being reviewed by the Tribunal.
23. Pursuant to section 66(1) of the Act, where a person ceases to be an “eligible employee” by reason of retirement on the ground of invalidity, and the person has not made an election under section 68 or 69 of the Act, an invalidity pension is payable to the person. If the person had made supplementary contributions whilst an “eligible employee” they would also be entitled to a lump sum benefit. Section 67 provides the method of calculating the invalidity pension and lump sum benefit payable.
24. The Commissioner submits that the applicant’s entitlement under section 66(1) is “self-executing” and is not vitiated by the applicant failing to apply for such a benefit. The Tribunal agrees. Section 66(1) is not reliant on an application for benefits being made, instead an obligation is placed on the Commissioner to pay benefits to a person who has ceased to be an “eligible employee”.. At the time that the benefits were paid to the applicant, in November 1988:
§she had ceased to be an “eligible employee”, having been retired on invalidity grounds;
§prima facie, section 66(2) did not apply to her, as the condition for which she was retired was not included on the BCC in force in relation to her; and
§she was, therefore, entitled to payment of benefits under section 66(1).
25. The fact that the Commissioner was investigating, pursuant to section 16(11), the possibility that the condition for which she was retired should have been included in her BCC is irrelevant. Until a decision was actually made under section 16(11), section 66(2) did not apply to the applicant.
26. Accordingly, the Tribunal finds that the decision of the Commissioner to pay the applicant invalidity payments pursuant section 66(1) of the Act was properly made. Therefore, the Tribunal affirms the decision under review in relation to application Q1994/552.
Consideration – Social Security Matter
27. As discussed in paragraph 20 above, the applicant contends that she had never made an application for the payment of superannuation benefits, whether by way of an interim benefit or invalidity benefits. This, in effect, resolves the remaining issue in her social security matter.
28. If Ms Phillips did not make an application to the Commissioner for Superannuation for benefits, there is no other claim that can be considered for the purposes of subsection 159(5) of the Social Security Act 1947.. That section provided that the Secretary could treat a claim for the payment of a pension, allowance, benefit or other payment under an Act administered by the Commonwealth as a claim for a pension, allowance or benefit of a similar character under the Social Security Act if the Secretary considered it reasonable to do so.
29. As there is no other claim to which section 159 could apply, the Tribunal finds that the applicant’s application for reinstatement of sickness benefits was made on 21 June 1989.
30. At the hearing of this matter, Ms Phillips sought to re-agitate the issues determined by the Tribunal in July 1993 in relation to her social security matter. However, on the evidence before it, the Tribunal sees no basis for interfering with the interim decision of the earlier Tribunal that Ms Phillips’ sickness benefits had been correctly cancelled from 17 December 1988, and that arrears of sickness benefits could only be back-dated, pursuant to section 125 of the Act, to 24 May 1989 and we so decide.
31. Having regard to, and adopting, the earlier findings of the Tribunal in relation to this application (Re Phillips and Secretary, Department of Social Security (AAT No 8826, 7 July 1993)), the Tribunal affirms the decision under review in application Q1992/416.
Decision
32. The Tribunal affirms the two decisions under review.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K L Beddoe, Dr K P Kennedy, Member, Ms J Cowdroy, Member
Signed: Kirsten Donnelly
AssociateDate of Hearing 22 August 2003
Date of Decision 6 February 2004
The Applicant appeared in person
For the Secretary Mr McQuinlan, Departmental AdvocateSolicitor for the Commissioner Mr Whithear, Australian Government Solicitor’s Office
0
1
0