SENISI TAKAI and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 746
•30 October 2012
[2012] AATA 746
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/0962
Re
SENISI TAKAI
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Dr P McDermott, RFD, Senior Member
Date 30 October 2012 Place Brisbane The Tribunal affirms the decision under review.
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Dr P McDermott, RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – International Agreement – Date of effect of grant of pension – Deemed date – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) Schedule 1B
Social Security (Administration) Act 1999 (Cth) ss 13, 41, 42, Schedule 2
Social Security (International Agreements) Act 1999 (Cth) Schedule 3
CASES
Re Jackson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 669
Re Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606
Re Takai and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 649REASONS FOR DECISION
Dr P McDermott, RFD, Senior Member
30 October 2012
INTRODUCTION
Mr Takai is qualified to receive disability support pension (DSP). Centrelink made a decision to grant him DSP with effect from 14 October 2011. I have to determine whether Mr Takai can be paid DSP from an earlier date.
BACKGROUND
Mr Takai is a citizen of New Zealand. He has lived in Australia from 1984 to 1992 and again from 2003 to now. He has been unable to work since he was injured in a workplace accident in 2006. Until his workplace accident, Mr Takai was always gainfully employed. He made two claims for DSP.
First DSP claim
On 26 October 2010, Mr Takai lodged a claim for DSP. That claim was rejected on the basis that he was not considered to be “severely disabled” and, therefore, not qualified under the Agreement on Social Security between the Government of Australia and the Government of New Zealand (“the International Agreement”).[1] Mr Takai sought review of that decision to reject his first claim. On 16 September 2011, this Tribunal made a decision that Mr Takai was not qualified for DSP at the time of his claim or within 13 weeks of that date.[2] On 22 September 2011, Mr Takai lodged an appeal in the Federal Court of Australia against that decision. However, the appeal was subsequently withdrawn on 20 October 2011.
[1] The International Agreement is contained in Schedule 3 of the Social Security (International Agreements) Act 1999 (Cth).
[2] Re Takai and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 649.
Second DSP claim
On 14 October 2011, Mr Takai made telephone contact with Centrelink about lodging a fresh application for DSP. On 19 October 2011, he lodged another claim for DSP. On 4 November 2011, that claim was rejected on the basis that he could not be considered “severely disabled” for the purposes of the International Agreement. On 14 November 2011, the original decision-maker re-affirmed the decision after reconsideration of the claim. On 10 December 2011, the authorised review officer set aside the decision to reject the claim for DSP and instead granted Mr Takai DSP from 14 October 2011. On 14 December 2011, Mr Takai sought review of the decision of the authorised review officer on the basis that he should be given back payment to when his first claim was made in October 2010. On 14 February 2012, the Social Security Appeals Tribunal affirmed the decision to only pay DSP from 14 October 2011. Mr Takai now seeks review of that decision by this Tribunal.
RELEVANT LEGISLATION
The relevant legislation which applies to the determination of this application is the Social Security Act 1991 (Cth) (‘the Act’), the Social Security (Administration) Act 1999 (Cth) (‘the Administration Act’) and the Social Security (International Agreements) Act 1999 (Cth) which gives the International Agreement the force of law.
CONSIDERATION
The Secretary contends that Mr Takai was not qualified to receive DSP at the time of his first claim on 26 October 2010 or within 13 weeks of that date. Under the International Agreement, Mr Takai would only be entitled to receive DSP if he was “severely disabled”.[3] The term “severely disabled” is defined under the International Agreement as meaning a person who has an impairment which makes them totally unable to work for at least the next two years.[4]
[3] Article 2, para 2.
[4] See Article 1, para 1, definition of “severely disabled”.
The International Agreement provides for the Acts forming the social security law of Australia to apply to a claim by the applicant for DSP.[5] This has the consequence that cl 4 of sch 2 of the Administration Act applies to Mr Takai’s case. It provides that the relevant time to consider the entitlement of the applicant to DSP is during the 13 weeks after the claim.[6] Accordingly, in order for Mr Takai to have been entitled to DSP from the date of his original claim, which was made on 26 October 2010, he would have to show he was “severely disabled” during the period 26 October 2010 to 24 January 2011. There is no evidence before the Tribunal that Mr Takai was “severely disabled” during this period.
[5] Article 2, para 1.
[6] Re Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 at [7]-[8].
This Tribunal has already determined that Mr Takai was not qualified for DSP within the relevant period of 26 October 2010 to 26 January 2011.[7] When this Tribunal determined the previous application of Mr Takai, it found that he could only then be assigned an impairment rating of 5 points in respect of his gout. However no rating could be assigned for his carpal tunnel syndrome as this condition was not, within this relevant period, considered to be fully treated or stabilised. Under Schedule 1B of the Act, a rating can only be assigned for a condition which is considered permanent in that it has been fully diagnosed, treated and stabilised and is likely to persist for at least the next two years.[8]
[7] Re Takai and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 649.
[8] See the Introduction to the Impairment Tables in Schedule 1B, paras 4 and 5.
In any event, Mr Takai withdrew his right of appeal in respect of his original claim for DSP. In considering this application I am confined to considering his second claim for DSP. It is this claim which is the subject of the decision under review.
The Secretary contends that at the time when Mr Takai made his second claim for DSP on 14 October 2011, it was still doubtful as to whether impairment ratings could be assigned for all of his medical conditions, as evidenced by the job capacity assessment report completed by Mr Boehm, an accredited exercise physiologist, on 3 November 2011.[9] Mr Boehm considered that only 10 points could be assigned in respect of Mr Takai’s gout condition. Mr Boehm was not prepared to assign any rating for carpal tunnel syndrome or another condition as they were still undergoing or awaiting medical treatment. The authorised review officer, quite properly in my view, sought a further opinion from Ms Niclasen, a registered nurse who works for the Health Professional Advisory Unit. Ms Niclasen, after a review of the available medical evidence, considered that an impairment rating of 15 points could be assigned in respect of Mr Takai’s carpal tunnel condition. This is a case where the carpel tunnel condition can regarded, within the requisite 13 week period from when he lodged his second DSP claim on 14 October 2011, as being fully diagnosed, treated and stabilised and likely to persist for at least the next two years.
[9] Exhibit A, T-Document 15, pp. 91-97.
Whist the ARO accepted that Mr Takai was qualified for DSP with effect from 14 October 2011 on the basis of updated reports, such acceptance does not mean that he was qualified at an earlier date. There is no evidence before me that Mr Takai was, prior to that date, “severely disabled” within the meaning of the International Agreement. To be “severely disabled” Mr Takai would have had to be totally unable to work for at least the next two years. There is no medical evidence before me that Mr Takai was in that condition prior to 14 October 2011.
Even if Mr Takai was qualified for DSP prior to 14 October 2011, DSP is not payable before this date because of the operation of the Administration Act. The scheme of the Administration Act provides that the “start date” for the payment of DSP is the date of the claim (see ss 41 and 42, and Schedule 2).[10] Clause 3 of Schedule 2 of the Administration Act provides that any payment can only be granted from the day on which the claim was made. The effect of s 13(1) of the Administration Act is that where an applicant makes contact about claiming a benefit and then lodges their application for that benefit within 14 days of the original contact, the original contact date can be deemed to be the date when the claim was lodged. The claim of Mr Takai was deemed as to have been made on 14 October 2011 when telephone contact was made. There is no provision in the Schedule that enables a benefit to be paid from an earlier date.
[10] Re Jackson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 669 at [10].
While I consider that the decision of Centrelink to grant DSP from 14 October 2011 was the correct decision to make, that is not the end of the matter. Mr Takai has made a claim for compensation for defective administration which is being considered. The advocate for the Secretary has also, quite properly, advised Mr Takai that he can make an application to the Minister for an ex gratia payment.
Mr Takai needs assistance with completing forms as he has difficulties with literacy. He was not aware that he could lodge a DSP claim at any time. The relief that he was seeking when he lodged an appeal was the right to make a new application for DSP. It would be beneficial if Mr Takai was referred to a social work team as he is somebody who is in need of assistance.
DECISION
I consider that the decision to pay Mr Takai disability support pension from 14 October 2011 was the correct decision. I affirm the decision under review.
I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member.
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Associate
Dated 30 October 2012
Date of hearing 25 October 2012 Applicant In person Solicitors for the Respondent Mr B Hamilton
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