RICHARD BRADLEY and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2013] AATA 514
[2013] AATA 514
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0083
Re
RICHARD BRADLEY
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal PROFESSOR RM CREYKE, SENIOR MEMBER
Date 22 July 2013 Place Canberra The decision under review is affirmed.
....................................[sgd]....................................
Professor RM Creyke, Senior Member
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – disability pension – youth allowance – start date of social security benefit – backdating of benefit – exemptions in sections 13 and 15 of the Social Security (Administration) Act 1999 (Cth) – the decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) section 94
Social Security (Administration) Act 1999 (Cth) sections 11, 13, 15(1). 15(4A), 16 and 41
REASONS FOR DECISION
PROFESSOR RM CREYKE, SENIOR MEMBER
22 July 2013
Mr Bradley lodged a claim with the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (Secretary) for disability support pension (DSP). The Secretary decided that he is entitled to the DSP from 9 January 2012. Mr Bradley considers his entitlement commenced earlier on 21 February 2011.
The decision not to backdate his DSP, made by the Secretary on 1 February 2012, was affirmed by an authorised review officer (ARO) on 17 May 2012, and in turn by the Social Security Appeals Tribunal on 3 August 2012. Mr Bradley sought further review by the Tribunal on 9 January 2013.
The matter was heard in Canberra by telephone on 23 May 2013.
Background
Mr Bradley suffers from Asperger’s Syndrome, a congenital condition which falls under the autistic spectrum, although it was not diagnosed until 2008. Despite learning difficulties, Mr Bradley was able to enrol in a course at the University of New England which commenced on 21 February 2011.
A psychological assessment was undertaken by a psychological service in Sydney on 16 July 2008. The psychologist identified ‘an array of social, cognitive and emotional difficulties’ which she diagnosed as due to Asperger’s Syndrome, stated to be ‘a developmental condition that affects social interaction and restricted patterns of behaviour’. Subsequently, Mr Bradley had 12 sessions with a psychologist.
He had deferred studies for two years when he first made inquiries in early 2009. When he deferred entry to university, Mr Bradley obtained work with Woolworths, St Marys, Sydney, NSW from June 2009. However, in 2011, having obtained entry to the University of New England in Armidale beginning 21 January 2011, Mr Bradley successfully requested a transfer to Woolworths in Armidale. His release date from St Marys was shown as 19 February 2011. He commenced work in Armidale on 4 March 2011.
A Job Capacity Assessment was completed on 18 February 2009 for the purpose of assessing whether Mr Bradley was entitled to disability employment intervention. Mr Bradley was assessed as having a present capacity for work of 15-22 hours per week, with a future capacity within two years, with intervention, of 30+ hours a week. His condition was not found to be ‘fully diagnosed, treated and stabilised’.
On 25 January 2011, Mr Bradley contacted Centrelink to enquire about his eligibility for support as a full-time tertiary student, living away from home and being without parental financial support. The call is annotated as a general enquiry for youth allowance. He was also referred to a disability support centre for telephone advice. He claims that he was advised that he did not qualify for the DSP. The Centrelink record simply states that there was discussion about eligibility criteria for DSP, including work hours and income test. Mr Bradley made an online claim for youth allowance that day.
Mr Bradley claims that the person to whom he spoke about the DSP misunderstood his enquiry since there is evidence in the ARO Notes that the person considered and rejected his eligibility for youth disability supplement (YDS), not DSP. The officer, according to the Notes, relied on a Job Capacity Assessment for Mr Bradley conducted in 2009 which assessed him as having a future capacity for work within the next two years of 30 hours per week. As a consequence he was not assessed as having a partial capacity to work and could not be granted the YDS. The Tribunal notes, however, that the ARO Notes also states: ‘The annotation to the document [recording Mr Bradley’s call to a Centrelink Call Centre] records that the eligibility criteria for DSP including work hours and income test were discussed’.
On 14 February 2011 Mr Bradley visited the Centrelink Office in Armidale to enquire about youth allowance. He claims that he enquired about DSP as well as youth allowance and he was interviewed by an officer. When asked about his work history, he said he responded ‘I am employed’. In explanation at the hearing, however, he noted that at that time he was on unpaid annual leave from Woolworths, awaiting confirmation of his transfer to Woolworths Armidale, a transfer which had not then been approved. Hence his response may have been inadvertently misleading. He was not in fact working at that time. In any event, he said the result was that he was only given a youth allowance form and the officer would not give him a DSP form as he was considered to be ineligible because he was working. Mr Bradley had also made enquiries on 8 February 2011 and on 14 February 2011, both of which are recorded as relating only to youth allowance.
On 9 January 2012, Mr Bradley again applied for DSP. On 18 January 2012 he underwent a Job Capacity Assessment for the purposes of the DSP claim. His condition was rated at 20 points, his work capacity for the next two years was listed as 8-14 hours per week, even with the support of the disability employment support service, and his condition was permanent. His application was successful but only from 9 January 2012. Mr Bradley contended he should have been paid DSP from February 2011 and that the failure to do so has denied him some $18,000.
During 2011, Mr Bradley had worked at Woolworths, Armidale. In a Confirmation of Employment notification from Woolworths, dated 21 March 2012, his current base hours was listed as 10. However, Woolworths also provided a Retrospective Pay Detail Report for Mr Bradley for the period 13 June 2009 to 21 March 2012. A table prepared by Centrelink based on those figures, and also incorporating the hours of face to face and home study of Mr Bradley from 20 February 2011 to 1 January 2012, showed that Mr Bradley had worked at Woolworths in excess of 15 hours a week for 23 of the 46 weeks in that period. In addition, his work, face to face study hours, and his additional home study time during the same 46 week period had exceeded 15 hours a week on 41 weeks. The figures for home study time were provided by Mr Bradley.
Mr Bradley claimed that since he was receiving either no, or minimal, support from his parents, in order to survive financially he had been forced to work extra hours at Woolworths. He also claimed that the Occupational Therapist who conducted the second Job Capacity Assessment had advised him that he could retain a 16 hour contract while he tested his eligibility, but that once DSP was granted he should reduce his hours immediately to 12 hours a week. He says he relied on that advice and reduced his hours from February 2012 when advised his DSP application had been successful. Mr Bradley contended that since he reduced his hours of work his marks have improved. To date, Mr Bradley has obtained two passes, 10 credits and four distinctions in his courses in the first two years of study. Three of his four distinctions were achieved in 2012.
Legislation
The relevant legislation is found in the Social Security Act 1991 (Cth) (Act), and in the Social Security (Administration) Act 1999 (Cth) (Administration Act).
Issue
The sole issue is whether Mr Bradley was entitled to DSP earlier than 9 January 2012.
Contentions
Mr Bradley claims that it has been accepted that he has a congenital condition, that he met the criteria for DSP on 9 January 2012 and that his condition has not changed and was the same in February 2011 when he first made enquiries about eligibility for DSP. In 2011 he was told, incorrectly, that he was not eligible. However, since DSP has now been granted, he must logically have been eligible in 2011 and hence his entitlement should be backdated to the time in 2011 when he first made enquiries.
The Secretary contended that as Mr Bradley had made a claim in writing for DSP, and he was qualified on 9 January 2012, the date on which he made his claim, his start date for payment, is 9 January 2012. Conversely since he did not make a claim in writing for the DSP in February 2011, and whether he was then qualified for the payment was not tested under the legislation, he cannot be entitled to be paid from that time.
Consideration
The scheme of legislation concerning applying for and start dates for income support and other payments under the social security law is prescriptive and tightly prescribed. Although there are exceptions to the foundation provisions, these too are limited in scope and prescriptive. The representative of the Secretary explained at the hearing that the reason for these requirements is evidential, given the volume of claims received by Centrelink each year. The Tribunal, as with earlier decision-makers in the process, are constrained by the legislation. It is against that background that the following consideration occurs.
Sections 11 and 16 of the Administration Act provide that for a person to be eligible to receive a social security payment they must make a claim and that claim must be in writing. In addition, at the time of the application they must be qualified to receive the payment. Section 41 of the Administration Act provides that subject to any other provision in the social security law, the amount of any such payment is payable only from the date of the written claim. The date of claim is, accordingly, the ‘start day’ for payment in the case of someone who is otherwise qualified to receive the social security payment.
Exception: Administration Act section 13 – deemed claim
There are exceptions to these principles. Section 13 of the Administration Act provides for a start date earlier than the date on which a person made a claim in writing if:
13(1)(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.
Section 13(1) requires Mr Bradley to satisfy three key elements: he must have been qualified on the day he first contacted the Department; his contact must have been acknowledged by the Department; and he must have lodged a claim within 14 days after that first contact.
The first key criterion is that Mr Bradley was qualified for DSP in 2011. The criteria for DSP is contained in section 94 of the Act. Section 94 provides, as relevant to Mr Bradley’s claim, that to be qualified for DSP he must have a ‘physical intellectual or psychiatric impairment’; that impairment has been assessed ‘as 20 points or more under the Impairment Tables’; and he had a ‘continuing inability to work’.[1]
[1] Social Security Act 1991 (Cth) (Act) section 94(1)(a) – (c)(i).
A continuing inability to work, as relevant, requires that the person can show that they could not work without a ‘program of support within the next 2 years’; and the impairment is sufficient to prevent the person from undertaking a training activity during the next 2 years’; or if that criterion is not met, ‘such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next two years’.
In February 2009 Mr Bradley had undertaken a Job Capacity Assessment. That assessment covered a period of the next two years, that is, until February 2011. The Tribunal has considered the report to see whether according to that assessment he would have qualified for DSP in early 2011. The assessor did find that Mr Bradley had an ‘intellectual or psychiatric’ impairment, namely, Asperger’s Syndrome. However, the report did not test Mr Bradley’s level of impairment to assess whether he met 20 points.
At the same time, there is information about Mr Bradley’s continuing ability to work. The focus of the assessment was on whether he needed specialist disability employment intervention. The outcome of the assessment was that Mr Bradley did need a program of support to enable him to improve his ability to work at Woolworths and this work and support continued for at least the next two years.[2] In addition he did receive psychological assistance with twelve sessions with a psychologist over this period. That does not necessarily mean that his ‘impairment is of itself sufficient to prevent [him] from doing any work independently of a program of support within the next two years’.[3] There is evidence that Mr Bradley had been working at Target prior to the Job Capacity Assessment. So he was managing to work, although given his studies it was as a casual. In addition the report of the assessment noted that Mr Bradley was able to work for between 15 to 22 hours a week. With intervention it was predicted that his hours of work would increase to 30+ a week. In other words Mr Bradley was not prevented from doing any work without a program of support over the next two year period. Hence he did not meet this criterion.
[2] Act s 94(2)(a).
[3] Act s 94(2)(a).
The final criterion, as relevant, considered is whether Mr Bradley had an ‘impairment [which] is of itself sufficient to prevent [him] from undertaking a training activity during the next two years’.[4] The psychologist’s report dated 16 July 2008 also suggested he would need ‘ongoing assistance with his academic work’ and that Mr Bradley needed ‘interventions…to teach and encourage the use of strategies in the organisation of information during study, and in the planning, organisation and production of written work’, and to enable him to manage his anxiety when faced with changes to routine, or exam timetables. However, he was at this time in year 12 of high school. The psychologist had assessed him as having ‘average range intellectual ability’. He had apparently also been working at Target without intervention during this period suggesting his impairment was not of such a level as of itself ‘to prevent him doing any work independently of a program of support within the next 2 years’.[5] The program of support was to increase his ability to work, not to enable him to work.
[4] Act s 94(2)(b)(i).
[5] Act s 94(2)(a).
In addition, his impairment did not of itself appear to be sufficient to prevent him undertaking a training activity during the next two years.[6] A ‘training activity’ means ‘education, pre-vocational training; vocational rehabilitation…[and]; work-related training (including on-the-job training)’.[7] Mr Bradley was at the time of the assessment report in February 2009, studying for his Higher School Certificate. The psychologist had assessed him as having average intellectual ability, and he had apparently reached year 12 without intervention. So the Job Capacity Assessment coupled with the psychologist’s report, could not be said to support the fact that in February 2009 his impairment was of itself sufficient to prevent him undertaking a training activity in the next two years.
[6] Act s 94(2)(b)(i).
[7] Act s 94(5).
In summary, that means Mr Bradley did not meet the criteria for DSP in that his impairment was not assessed at 20 points or more, and he did not meet the criterion that he then had a continuing inability to work. Accordingly he did not fulfil the criteria of the first key element – that he was qualified for DSP. In addition, his contact must have been acknowledged by the Department and there is no evidence that this occurred; and he must have lodged a claim within 14 days after that first contact, which again he did not do. Accordingly Mr Bradley’s circumstances do not fall within the exception in section 13 of the Administration Act.
Exception: Section 15 - incorrect or inappropriate claim
Section 15(1) provides that if a person makes an incorrect claim and subsequently made a claim for a social security payment for which the person is qualified, and the Secretary is satisfied that it is reasonable to do so, the Secretary will deem that the person is qualified for the correct claim on the day the person first made an incorrect claim. This exception does not assist Mr Bradley since his actual claim in 2011 for Youth Allowance was not an ‘incorrect claim’ in that he was qualified for that payment and received it during 2011 and until 9 January 2012.
However, section 15(4A) provides that if a person makes an initial claim for income support, but on that day, the person was qualified for another income support payment, and the person later makes a claim for that other payment, and the Secretary is satisfied that it is reasonable to do so, the person can claim the other payment from the date on which the initial claim was made.
Mr Bradley claims that he first sought to test his eligibility for DSP when he made enquiries about either DSP or youth allowance on 25 January 2011. That contact is recorded in the database printouts and refers to both payments. Mr Bradley also contends that he went in to the Centrelink Office in Armidale on 28 February 2011 when he again enquired about DSP as well as youth allowance, but was denied his request for an application form for DSP because he was told he was not qualified. There is no evidence in the database records of any enquiry about DSP in the records after 25 January 2011. All the records in February 2011 refer solely to youth allowance.
The Tribunal has no reason to doubt the truthfulness of Mr Bradley and it has accepted as correct that he did make enquiries about DSP at one of his subsequent contacts with Centrelink. The Tribunal notes that a flatmate provided evidence, dated 16 March 2013, that Mr Bradley had gone to the Centrelink office in person in the first week in semester one to apply for DSP and that ‘on his return several hours later that day he seemed a bit angry and after asking him what had happened he explained that Centrelink would not give him a DSP claim form “because he was working”’. That is consistent with Mr Bradley’s account of the reason given by the Centrelink officer on that occasion. Semester one commenced on 21 February 2011 so a visit to Centrelink in the first week could have been made on 28 February 2011. The Tribunal has therefore accepted that Mr Bradley did make enquiries about both DSP and youth allowance on both these occasions.
However, Mr Bradley also has to meet the next criterion in section 15(4A), namely, that on the day of his enquiry, whether the 25 January 2011 or 28 February 2011, he was qualified for DSP. Meeting this criterion again faces the obstacle listed under section 13. In other words, since his eligibility for DSP had not been met at either of those dates, this provision, too, cannot provide an exception which applies to Mr Bradley. It was also noted by the representative for the Secretary that although the second Job Capacity Report dated 18 January 2012 did undertake the testing for DSP and Mr Bradley did qualify for the payment, that report did not consider his eligibility for DSP at an earlier date.
The Tribunal notes that against that argument the Assessment referred to many of the same impairments as were referred to in the previous Job Capacity Report. His condition was congenital and likely to continue indefinitely. His impairments included lack of social skills, anxiety management, communications problems, concentration difficulties, ability to complete tasks, impaired memory issues, cognitive impairment, reduced stress tolerance and ability to cope with stress and to learn new tasks. So it could be argued that his condition had not improved. Indeed the first assessment indicated that with support he would be capable of working 30+ hours a week, while the later report limited his working ability to 8-14 hours a week, even with intervention. So that suggests his condition had in fact deteriorated.
The issue, however, is Mr Bradley’s continuing ability to work during the intervening period. As Table B indicated, Mr Bradley significantly outperformed his assessed capacity to study and work. Even if work alone was taken into account, he worked more than 15 hours a week in 23 of the 46 weeks. In other words, although Mr Bradley said he only worked those hours because he needed to do so in order to survive financially and to permit him to continue his university studies, he did in fact manage those hours. Since the ‘work’ referred to for the purpose of DSP is defined to mean work ‘for at least 15 hours per week on wages that are at or above the relevant minimum wage’[8] it appears that even without taking into account the study time involved in his successful university studies, Mr Bradley’s capacity was considerably in excess of the maximum level listed in the ‘continuing ability to work’ criterion for someone who qualified for DSP.
[8] Act s 94(5).
Finally, Mr Bradley argued that if he is eligible from 2012 and his circumstances and condition had not changed, he would have been eligible in 2011. Notwithstanding that argument, the prescriptive requirements in the Act and Administration Act concerning lodgement were not met in 2011, as outlined above.
Accordingly, the Tribunal finds that Mr Bradley is not able to establish that he qualified for DSP as at either 25 January 2011, or 28 February 2011. That means the Tribunal affirms the decision not to find that he was qualified for DSP earlier than 9 January 2012. His claim is accordingly precluded by the legislation and his DSP cannot be back paid.
I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member ....................................[sgd]....................................
Associate
Dated 22 July 2013
Date of hearing 23 May 2013 Advocate for the Applicant Greg Moin Solicitors for the Applicant Moin & Associates Advocate for the Respondent Sue Mahony Solicitors for the Respondent Program Litigation and Review Branch
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