Prudence Tallboys and Secretary, Department of Social Services

[2013] AATA 950

[2013] AATA 950  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/3841
Re	Prudence Tallboys
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms A F Cunningham (Senior Member)
Date	19 December 2013
Date of written reasons	6 January 2014
Place	Hobart

The decision under review is affirmed.

[Sgd Ms A F Cunningham]

Ms A F Cunningham (Senior Member)

SOCIAL SECURITY – disability support pension – date of eligibility – deemed claim – contact made prior to written claim - decision under review affirmed

Social Security (Administration Act) 1999, ss 11, 13(3), 16

Social Security Act 1991, ss 23(1)(A), 94

Formosa and Another v Secretary, Department of Social Security (1988) 46 FCR 117

REASONS FOR DECISION

Ms A F Cunningham (Senior Member)

6 January 2014

1. An application has been made by Richard Tallboys, as Power of Attorney for the applicant, Prudence Tallboys for a review of a decision of the Social Security Appeals Tribunal (SSAT) regarding the date of eligibility for her disability support pension (DSP). The decision affirmed a Centrelink decision that the applicant was not entitled to DSP prior to the day on which she lodged a claim for that payment on about 5 October 2012, backdated to 21 of August 2012, the date of first contact about a claim pursuant to subsection 13(3) of the Social Security (Administration Act) 1999 (the Administration Act).

2. The Tribunal was requested to decide the application for review on the basis of the written material before it. This included the T Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the Secretary’s Statement of Facts and Contentions with attachments and correspondence from Mr Tallboys dated 26 September 2013 and 10 October 2013.

   BACKGROUND FACTS

3. The following facts do not appear to be in dispute and the Tribunal finds accordingly. The applicant, Prudence Tallboys suffers from a medical condition which has resulted in communication difficulties. By Power of Attorney dated 18 October 2012 she appointed her father, Richard Tallboys and her son Benjamin Tallboys as her attorneys.

4. Ms Tallboys had previously been in receipt of DSP for a number of years until it was cancelled on 20 November 2008. On about 16 February 2012 Ms Tallboys contacted Centrelink regarding a claim for DSP. Subsequent correspondence sent to Ms Tallboys by Centrelink was returned.

5. On about 5 October 2012 Ms Tallboys lodged a written claim for DSP. She was assessed as eligible and DSP was granted with effect from the day on which an intention to claim was made, that is 21 August 2012.

   THE ISSUES

6. It is contended by Mr Tallboys on behalf of the applicant that the legislation should permit the exercise of a discretion were “extraordinary circumstances’ prevail. In this case Mr Tallboys contends that his daughter’s exceptional circumstances which were set out in the decision of the SSAT in paragraphs 14 to 17 inclusive, resulted in a delayed application for DSP.

7. Mr Tallboys had advised the SSAT that his daughter was hospitalised on 26 May 2012 following a stroke and had a major operation on 1 June 2012. There was no one who could act on her behalf until Mr Tallboys and his wife returned to Tasmania in August 2012 to Tasmania when they met with a hospital social worker on 12 August 2012 who informed them about DSP. Mr Tallboys contacted the Department on the same day. The SSAT stated in its decision that the Department had accepted that Ms Tallboys’ medical condition prevented her from lodging an earlier claim and granted payment from the earliest contact date being 21 August 2012. In paragraph 17 of the SSAT decision, it is reported that Mr Tallboys had said that it was impossible for his daughter to contact the Department at an earlier date because she was severely incapacitated and had no one to assist her. Nor was any family member aware of a possible entitlement for a pension payment until they were so informed by the hospital social worker.

8. Mr Tallboys maintains that his daughter was eligible for DSP prior to the date on which it was granted and that his daughter’s particular circumstances should be taken into account and discretion exercised to backdate her entitlement.

9. Brian Sparkes on behalf of the Secretary contends that the legislation does not permit the exercise of discretion to pay the applicant DSP prior to 21 August 2012. This was the date of her initial contact which falls within the 13 week period provided for in subsection 13(3) of the Administration Act.

   THE LEGISLATION

10. The relevant legislation is the Social Security Act 1991 (the Act) and in particular the qualification provisions of section 94; and the Administration Act.

11. Section 11 of the Administration Act provides as follows:

    “General Rule

    (1)  Subject to subsection (2) and Subdivision B, a person who wants to be granted:

    (a)  a social security payment; or

    (b)  a concession card;

    must make a claim for the payment or card in accordance with this Division.

    (2)  Subsection (1) does not apply to a concession card for which a person is qualified under Division 1 of Part 2A.1 of the 1991 Act or under Subdivision A of Division 3 of that Part”.

12. Section 16 of the Administration Act provides that a claim for a social security payment can be made by either lodging a written claim or making a claim in accordance with the manner approved by the Secretary. It has been accepted by a number of authorities that for a claim to be a valid it must be in writing (Formosa and Another v Secretary, Department of Social Security (1988) 46 FCR 117).

13. The Secretary assessed that Ms Tallboys’ circumstances fall within the exception provisions of subsection 13(3) which provides:

“(3) For the purposes of the social security law, if:

(a) the Department is contacted by or on behalf of a person (the claimant) in relation to a claim for a social security payment, other than crisis payment or special employment advance; and

(b) the claimant is, on the day on which the Department is contacted, qualified for the social security payment; and

(c) the Secretary gives the claimant a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and

(d) the claimant 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 claimant lodged the claim, the claimant was caring for, or was the partner of, another person; and

(ii) throughout that period, the other person suffered from a medical condition; and

(iii) the medical condition, or circumstances related to the medical condition, from which the other person was suffering had a significant adverse effect on the claimant’s ability to lodge the claim earlier;

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

CONSIDERATION

1. It is not in dispute that Ms Tallboys met the qualification requirements for DSP as set out in section 94 of the Act for the relevant periods. There is evidence that she made initial contact with a Centrelink officer on about 16 February 2012 and again on 21 August 2012, but that her written claim for DSP was not received until on or about 5 October 2012.

2. Section 16 of the Administration Act requires that a claim for a social security payment, (which means a social security pension as provided for in subsection 23(1)(A) of the Act), must be made in writing. This requirement has been endorsed on several occasions by the Federal Court and the Tribunal. In considering the provisions of section 159(1) of the 1947 Social Security Act, Justices Davies and Gummow said in Formosaand Another v Secretary, Department of Social Security (supra) at page 123:

   “However, that is not to say that the requirement that the claim be in writing and on a form is not mandatory. The subject matter of the claim is the disbursement of public monies consequent upon the satisfaction of various criteria laid down in the statute for the payment of particular pensions, benefits and allowances. It would be to attend the administration of the legislation with the greatest uncertainty both for alleged claimants and for those charged with administration of the legislation if oral applications were to be treated as sufficient for the making of a claim. We would not see these difficulties as alleviated by the prospect of proceedings in court or before an administrative tribunal to establish the making of oral claims in disputed cases.’

   And further on page 124:

   “In our view, the requirement in s159(1) of the Social Security Act that a claim shall be made in writing is of central importance to the administration of the legislation and the subsection cannot, consistently with the scope and object of the statute, be read as if a claim for a pension is sufficiently made if made orally at an office of the Department to an officer of the Department .…”

3. The only provision in the Administration Act of relevance to the applicant’s circumstances is subsection 13(3) which makes provision for a deemed claim for a social security payment on a date prior to the written claim where the delay is due to a medical condition which has a significant adverse effect on the person’s ability to lodge the claim within the 14 days ordinarily allowed. Under this provision the timeframe can only be extended for up to 13 weeks, provided the person (or their representative) contacted the Department advising of an intention to lodge a claim and that intention was acknowledged by written notice from the Department. A further requirement is that the applicant be qualified for the Social Security payment on the day when the Department is contacted.

4. It is conceded on behalf of the Secretary that Ms Tallboys satisfied all of the above requirements and it was on this basis that DSP was granted from 21 August 2012. There is evidence that contact was also made on or about 16 February 2012 however the provisions of subsection 13(3) do not allow for the claim to be backdated to a period earlier than 13 weeks from the date of the written claim.

5. At the hearing before the SSAT Mr Tallboys had stated that it was impossible for his daughter to contact the Department any earlier because she was severely incapacitated and had no-one else to assist her. He claimed that her medical impairment and lack of knowledge about the social security system should not prevent her from receiving a payment for which she is qualified. However as stated by the SSAT, the legislation is very prescriptive and does not afford any discretion to the decision maker to take account of Ms Tallboys’ particular circumstances. The only legislative provision that allows for the date of an earlier contact to be considered is section 13 with respect to deemed claims which will only be accepted where the specified requirements of that section are met.

6. In his submissions to this Tribunal, Mr Tallboys referred to the New South Wales legislative provision regarding the term “general rule” and contended that exceptions to “the rule” are possible. Mr Tallboys argued that if Parliament had intended that there should be no exceptions to a rule then the word “general” should not have been used in the Administration Act. In response Mr Sparkes submitted that a reference to an administrative scheme in New South Wales is irrelevant to the interpretation of Commonwealth legislation and the arguments have no legal foundation. He contended that the provisions of the Administration Act are clear in terms of what is required if a person wants to be paid a social security payment. Mr Sparkes submitted that the only exceptions to the requirement for a written claim as provided for in section 11, are limited to subsection 11(2) which have no application in the present case.

7. The Tribunal accepts the Secretary’s submissions      that the law permits no other outcome and that Ms Tallboys cannot be granted and paid DSP prior to 21 August 2012.

8. For all of the above reasons the Tribunal’s decision is to affirm the decision under review.

I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

[Sgd]

Administrative Assistant

Dated 6 January 2014

Date(s) of hearing Hearing on the papers