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

[2009] AATA 978

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 978

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4035

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And PENELOPE LAMOTTE

Respondent

DECISION

Tribunal Mr B H Pascoe, Senior Member

Date21 December 2009

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and, in its stead, affirms the decision of the applicant of 17 February 2009, granting disability support pension to the respondent from 6 August 2007.

(sgd) B H Pascoe

Senior Member

SOCIAL SECURITY – disability support pension – earlier decision to reject claim – newstart allowance claimed- whether new claim constituted application for review.

Social Security Act 1991 s 94

Social Security (Administration) Act 1999 s 107

REASONS FOR DECISION

21 December 2009 Mr B H Pascoe, Senior Member    

1. This is an application by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (the applicant) to review a decision of the Social Security Appeals Tribunal (SSAT) that the respondent, Ms P Lamotte, satisfied s 94(1)(a), (b) and (c) of the Social Security Act 1991 (the Act) from 17 May 2004 and was eligible for disability support pension (DSP) from that date. 

2.      At the hearing the applicant was represented by Mr T de Uray of the Legal Services Branch of Centrelink.  Ms Lamotte was unrepresented and appeared at the hearing by telephone. 

3.      The history of this matter is fully set out in the reasons for decision of the SSAT.  Ms Lamotte originally claimed DSP on 3 June 2004 after contact with Centrelink on 17 May 2004.  Her claimed conditions were cervical spine disc damage, schizophrenia, agoraphobia and panic attacks.  Her claim was rejected by letter of 6 July 2004 on the basis of medical reports indicating that her conditions were not fully treated and not necessarily permanent.  On 26 July 2004 Ms Lamotte lodged a preliminary claim and, on 16 August 2004, a formal claim for Payments for people with disabilities, illnesses or injuries – Newstart Allowance.  This was accepted and payments were made from 26 July 2004.  On 30 October 2007, Ms Lamotte lodged a new claim for DSP.  This was initially rejected on 2 February 2008.  On 3 March 2008 an Authorised Review Officer (ARO) set aside the rejection decision and DSP was granted from 20 August 2007.  On 27 November 2008, Ms Lamotte sought review of this decision and argued that it should be backdated to the date of her 2004 claim.  An ARO determined that it should be backdated to 6 August 2007, the date on which Ms Lamotte contacted Centrelink about lodging a new DSP claim.  Ms Lamotte applied for review of this decision by the SSAT. 

4. In brief, the decision of the SSAT was based on subsequent medical evidence and the evidence of Ms Lamotte. On this basis it was found that she had satisfied the requirements of s 94(1)(a), (b) and (c) at the time of her application for DSP in 2004. The SSAT made a further finding that her entitlement to DSP should be backdated to 17 May 2004. The Tribunal stated:

As noted earlier, Centrelink have argued that the preliminary claim for newstart allowance on 26 July 2004 and then a subsequent claim on 16 August 2004 could both be considered to be a request for review of the decision to reject her claim of May 2004. The Tribunal concurs with this approach and has found that Ms Lamotte requested a review of the decision to reject her claim for disability support pension by her lodging a preliminary claim for newstart allowance on 26 July 2004 which was within 13 weeks of the decision to reject her claim made on 6 July 2004.

The reference to the Centrelink argument appears to be based on an earlier observation that the ARO was considering treating a claim for newstart allowance lodged 16 August 2004 as a request for review.  

5.      It was submitted for the applicant that the medical evidence available at June 2004 and within 13 weeks after the date of the claim firmly indicated that Ms Lamotte’s conditions were not fully diagnosed, treated and stabilised to allow an allocation of impairment rating points to qualify for DSP.  It was further submitted that the mere lodgement of an application for another benefit, newstart allowance, cannot, of itself, reasonably amount to a request for review of a prior decision rejecting a claim for DSP. 

6. Section 107(2) and (3) of the Social Security (Administration) Act 1999 (the Administration Act) provide:

(2)If:

(a)a decision (the original decision) is made rejecting a person's claim for a social security payment or a concession card; and

(b)the person is given a notice informing him or her of the original decision; and

(c)within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and

(d)a decision that the claim be granted is made as a result of the application for review;

the determination embodying the last‑mentioned decision takes effect on the day on which the determination embodying the original decision took effect.

(3)If:

(a)a decision (the original decision) is made rejecting a person's claim for a social security payment or concession card; and

(b)the person is given a notice informing him or her of the original decision; and

(c)more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and

(d)a decision that the claim be granted is made as a result of the application for review;

the determination embodying the last‑mentioned decision takes effect on the day on which the application for review was made.

While neither the Act nor the Administration Act make provision for the means by which an application for review of a decision is to be made, it is clear that there must be some evidence of an intent to question the rejection of a claim. Here there appears to be no such evidence.

7.      In her evidence to the SSAT, Ms Lamotte said that she did not know she could appeal the rejection decision in 2004.  Before this Tribunal she repeated that assertion and maintained that she had been told by Centrelink that the decision was final and she should claim newstart allowance.  There is no record of any such discussion on Centrelink records.  The letter sent to her on 6 July 2004 stated clearly:

If you do not agree with this decision, please contact us and we will explain it. We will reconsider your case and change the decision if appropriate. If you still do not agree, you can ask for an Authorised Review Officer (ARO) to look at it. The ARO is an experienced officer who would not have previously been involved in your case. They can change the decision if it is wrong or, if they agree with the decision they can tell you how to appeal to the Social Security Appeals Tribunal (SSAT). Both the ARO review and the SSAT appeal are free.

Remember, if you do not ask for the decision to be reviewed within 13 weeks of being told about it, any change to that decision, or any backpayment can only take effect from the date you ask.

8.      While it is accepted that social security legislation is beneficial and should be construed generously and keeping in mind difficulties recipients can have with legislative provisions, there must be, at least, some evidence of communication by a person that they do not agree with a decision, are unhappy with the decision or believe that it is incorrect.  Simply applying for an alternative benefit cannot normally be accepted as a request for review of a decision to reject a prior claim. 

9.      It was clear from the evidence of Ms Lamotte to the SSAT and this Tribunal that she is in difficult, possibly dangerous and, certainly, necessitous circumstances.  While her position attracts considerable sympathy this cannot lead to a disregard for the specific terms of the legislation. 

10.     In view of the foregoing it must be found that no application for review of the decision of 6 July 2004 was made by Ms Lamotte within 13 weeks of that decision.  Consequently her entitlement to DSP can be dated only from 6 August 2007.  Given this finding it is unnecessary to consider the finding of the SSAT that she qualified for DSP in 2004. 

11.     It follows that the decision under review should be set aside and, in its stead, the decision of the applicant of 17 February 2009 should be affirmed that Ms Lamotte is entitled to DSP from 6 August 2007. 

I certify that the eleven [11] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr B H Pascoe, Senior Member

Signed: Cassie Renfrew

Clerk

Date of Hearing  9 December 2009

Date of Decision  21 December 2009
Self-represented Applicant          Ms P Lamotte
Advocate for the Respondent       Mr T De Uray, Centrelink Legal Services Branch