Rylance and Secretary, Department of Social Services (Social services second review)

[2016] AATA 383

Rylance and Secretary, Department of Social Services (Social services second review) [2016] AATA 383 (8 June 2016)

Division	GENERAL DIVISION
File Number(s)	2015/6744
Re	Andrew Rylance
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	8 June 2016
Place	Melbourne

The Tribunal affirms the decision under review.

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Miss E A Shanahan, Member

PENSIONS – benefits – allowances – application for sickness allowance – failure to apply within five weeks of becoming incapacitated – referred to Centrelink by Applicant’s superannuation fund – question as to sole or principal cause of failure to claim within legislative timeframe – refusal to answer questions related to medical conditions – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

REASONS FOR DECISION

Miss E A Shanahan, Member

8 June 2016

1. Mr Rylance lodged a claim for sickness allowance with Centrelink on 31 July 2015. He had undergone a surgical procedure on 22 June 2015 and had not worked from that date. On 13 August 2015, an officer of the Department determined that sickness allowance was payable as of 31 July 2015. Mr Rylance requested a review of this decision on the basis that he believed he should have been paid sickness allowance from 31 June 2015. On 1 October 2015, an Authorized Review Officer affirmed the original decision, advising that Mr Rylance did not qualify for sickness allowance before the date of his application on 31 July 2015.

2. Mr Rylance lodged an application for review of this decision by the Social Services & Child Support division of the Administrative Appeals Tribunal (AAT) on 7 October 2015.

3. At this first tier review, the AAT determined that the decision of the Authorized Review Officer was the correct and preferable decision, and thereby affirmed the reviewable decision.

4. Mr Rylance lodged an application for a second tier review by the Administrative Appeals Tribunal on 22 December 2015.

5. The Hearing took place by telephone on 6 May 2016. Immediately prior to the commencement of the hearing, Mr Rylance informed the hearing room attendant that he was participating from the hospital bedside of his fifteen year old daughter, and that his time was limited in terms of the evidence he could give to the Tribunal to a period of fifteen minutes.

6. Mr Rylance was self-represented. Mr James Henderson, a solicitor in the employ of the Department of Human Services, appeared for the Secretary. The Tribunal was provided with documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and these were accepted into evidence as exhibit R1.

7. Mr Rylance provided limited oral evidence to the Tribunal.

   BACKGROUND TO THE APPLICATION

8. According to the information provided to the first tier AAT hearing, Mr Rylance had been placed on a waiting list for orthopaedic surgery at Frankston Hospital in February 2015. On 22 June 2015, he underwent a high left tibial osteotomy for the medical condition described as left knee osteoarthrosis producing left knee pain. A medical certificate dated 31 July 2015 and signed by what appears to be a medical resident at the Frankston Hospital, Dr Kia Booli, certified Mr Rylance as being unfit for work from 22 June 2015 until 11 September 2015.

9. According to the first tier AAT decision, Mr Rylance underwent surgery on 22 June 2015 and was discharged on 24 June 2015. He spent four days at a relative’s home recovering from the surgery. He was re-admitted on or about 28 June 2015 for pain control. Mr Rylance is said to have returned to his home on 30 June 2015 at which time he was on crutches as he was non-weight bearing on his left leg. Prior to the surgery, Mr Rylance had been given to understand he would be off work for a period of four to eight weeks. Mr Rylance had given evidence that, on 30 July 2015, he had spoken with his superannuation fund, REST Industry Super, regarding his incapacity for work and had been advised by them to claim sickness allowance through Centrelink.

10. Mr Rylance contacted Centrelink on 31 July 2015, attending in person, and lodged a claim. As this claim was more than five weeks after he became incapacitated for work, the start date of the payment of sickness allowance was 31 July 2015.

11. The Social Security (Administration) Act 1999 (Cth) (the Administration Act) determines that the start date of sickness allowance is the date the individual applies for the payment, unless, in accordance with clause 11(2) of schedule 2 to the Administration Act, the Secretary is satisfied that the medical condition is the sole or principal cause of the person’s failure to make a claim within five weeks after the day on which the incapacity began. Mr Rylance has argued that while his medical condition and surgical procedure were not the sole cause of his failure to make a claim within the five week period, the incapacity arising from his operation was the principal cause. 

12. The evidence presented by the Department is that when Mr Rylance applied for the payment on 31 July 2015, he was recorded as saying that he was not aware that he could make a claim before 31 July 2015 and had done so on the advice of his superannuation fund. Mr Rylance claimed at the first tier hearing, in line with his letter to the Secretary dated 24 November 2015, that he was not capable of contacting Centrelink prior to 31 July 2015. He had provided the surgeon’s name and contact details and invited the Department to contact the surgeon to verify his claim.

13. During the first tier hearing, the Member asked Mr Rylance why he had not been able to contact Centrelink by telephone or email. Mr Rylance said that he did not have sufficient money to pay for a long telephone call, as he expected he would be on hold for a long period of time should he ring the Department or Centrelink. Mr Rylance had not provided further medical reports to the first tier Tribunal as he could not afford to pay for them. He again provided the telephone numbers of the surgeon and his General Practitioner to the Tribunal. It was pointed out to Mr Rylance that the onus was on him to produce medical evidence to support his application. The first tier Tribunal determined that it was Mr Rylance’s lack of knowledge that delayed his application and not the incapacity arising from his orthopaedic surgery.

14. In his evidence at the second tier before this Tribunal, Mr Rylance identified the only issue before the Tribunal being to determine whether his medical condition and post-operative phase between 22 June 2015 and 31 July 2015 was the principal reason for his not having lodged an application for a sickness allowance payment until 31 July 2015.

15. Given the time restraints placed on the hearing by Mr Rylance, the Tribunal endeavoured to ask four critical questions relating to his medical condition in order to determine if his condition was the principal cause of his delay. He refused to answer the questions directly, but did provide information that: he had been on crutches for six to eight weeks; he had re-fractured his tibia; and he had been re-admitted to hospital on two occasions. The first admission has already been recorded. The subsequent admission was because of the re-fracturing of his tibia and the development of a deep vein thrombosis. No medical evidence was presented to support these claims.

16. Mr Rylance, in response to the Tribunal’s question, admitted to having some sick leave owing to him from his employer, but would not provide information as to the quantity of this sick leave, nor would he provide any information regarding coverage he had from REST superannuation fund. The Tribunal presumes he had either temporary total disability insurance or salary continuance insurance, given his approach to REST on 30 July 2015. Mr Rylance said that REST had told him that there was a 60 day waiting period for salary continuance payment. At the time of his enquiry, he would have been 40 days post-incapacitation.

17. Mr Rylance completed his evidence by stating that, in the event that the Tribunal found against him, he would be appealing to the Federal Court.

    EVIDENCE BEFORE THE TRIBUNAL

18. Both the oral and documentary evidence before the Tribunal has been summarized above, under Background to the Application.

    RELEVANT LEGISLATION

19. Section 666 of the Social Security Act 1991 (Cth) sets out the qualification for sickness allowance. Sections 41(1) and 42 of the Administration Act set out the start date applicable in this matter as follows:

    41  Commencement

    1Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person’s start day in relation to the social security payment.

    42  Start day

    For the purposes of the social security law, a person’s start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2.

20. Schedule 2, clause 3(1) to the Administration Act defines the start date of payment as:

    3 Start day — general rule

    1If:

    (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

    However clause 11(2) of Schedule 2 to the Administration Act provides that:

    11 Incapacitated Claimant

    …

    2If:

    (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.

    SUBMISSIONS

21. Mr Rylance submitted that the only issue and question for the Tribunal to determine was in relation to whether his failure to lodge his application for sickness allowance within five weeks was due, principally, to his underlying medical condition.

22. Mr Henderson submitted that the sole or principal cause of the delay was Mr Rylance’s ignorance regarding his access to a sickness allowance and his failure to lodge his application online, by telephone, or by post, all of which were available alternatives.

    TRIBUNAL’S DETERMINATIONS

23. The Tribunal takes note of Mr Rylance’s evidence before the Administrative Appeals Tribunal first tier review, and the limited medical evidence he provided at the second tier review. With the exception of a certificate of incapacity from the Frankston Hospital dated 31 July 2015, which states that Mr Rylance had suffered from osteoarthritis of his left knee producing knee pain and underwent a tibial osteotomy on 22 June 2015, there is no medical evidence presented to substantiate his claim or corroborate the evidence he has given.

24. The Tribunal is aware that Mr Rylance was 40 years old at the time of his operation, and that this is a relatively early age for someone to have osteoarthritis of the knee. The cause of this osteoarthritis, be it a motor vehicle accident, work related trauma or some other form of trauma is unknown. This is relevant in that he might have some cover from a third party insurer. The evidence he has given suggests that he does have some cover in the form of his superannuation fund REST, possibly salary continuance insurance. He also admitted to having some sick leave owing from his employer, Coles Express.

25. Based on Mr Rylance’s evidence, he was unaware of his eligibility to claim sickness allowance and only did so when he was alerted to this by his superannuation fund.

26. The only evidence as to the degree of incapacity that might have influenced Mr Rylance’s ability to contact Centrelink prior to 31 July 2016 has been his very limited telephone evidence to the Tribunal, at both first and second tier review. Therefore, the Tribunal agrees that the principal reason why Mr Rylance delayed his application for sickness allowance was his ignorance of its availability, having only discovered it when investigating the possibility of his salary continuance which did not eventuate. Mr Rylance’s medical condition was not the sole or principal cause of his failure to claim within five weeks of 22 June 2015.

The Tribunal affirms the decision under review. I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

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Associate

Dated 8 June 2016

Date(s) of hearing	6 May 2016
Applicant	In person
Advocate for the Respondent	James Henderson