SUSSAN BEST and DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 345
•8 June 2012
[2012] AATA 345
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0641
2012/0647
Re
SUSSAN BEST
APPLICANT
And
DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
And
RESPONDENT
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Dr P McDermott, RFD, Senior Member
Date 8 June 2012 Place Brisbane Decision Summary
I vary the decision of 16 December 2010 by granting the applicant disability support pension from 16 September 2010 instead of 19 October 2010. I affirm the decision of 20 January 2012 to recover a charge amount of $17,470.12 from the applicant's compensation settlement.
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Dr P McDermott, RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Impairment tables – Applicant qualified for DSP before date of claim – Backdating of date person is deemed to have made claim – Earliest date no longer than 13 weeks before determination that person qualified for DSP – Decision under review varied
SOCIAL SECURITY – Pensions, benefits and allowances – Newstart allowance – Compensation effected payment – Preclusion period – Compensation charge – Repayment of benefit – No special circumstances – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 17, 94, 1169, 1170, 1179, 1184K, schedule 1B
Social Security (Administration) Act 1999 (Cth) ss 12, 13, schedule 2
CASES
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Elston and Australian Community Pharmacy Authority (1996) 44 ALD 126
Secretary, Department of Family and Community Services v Allan (2001) 66 ALD 147REASONS FOR DECISION
Dr P McDermott, RFD, Senior Member
8 June 2012
INTRODUCTION
Centrelink has recognised that Ms Sussan Best (the applicant) has impairments which entitle her to receive disability support pension (DSP). She has been granted disability support pension from 19 October 2010. I have to consider whether her eligibility for that benefit can be backdated to an earlier date. I also have to consider whether Centrelink was correct to recover a charge amount from a compensation settlement that was received by the applicant in respect of her 2007 workplace injury.
BACKGROUND
2007 DSP Claim
On 14 June 2007, the applicant made a claim for DSP. On 2 August 2007, Centrelink made a decision to reject that claim essentially on the ground that her back condition had not been investigated, treated and stabilised. On 6 November 2007, that decision was affirmed on internal review by an authorised review officer (ARO). On 31 January 2008, the Social Security Appeals Tribunal (SSAT) also affirmed the decision. On 11 April 2012, the applicant applied to this Tribunal for an extension of time to lodge an application for review of the decision. On 11 May 2012, a Presidential Member of this Tribunal made a direction to refuse the application for an extension of time (Application No 2012/1425). Accordingly, I do not have jurisdiction to consider whether the applicant should have been granted DSP in 2007.
2010 DSP claim
On 19 October 2010, the applicant contacted Centrelink to make another claim for DSP. On 28 October 2010, she lodged a claim form for DSP. On 16 December 2010, Centrelink made a decision to grant the applicant DSP with a start date of 19 October 2010, this due to her claim being deemed to have been lodged on 19 October 2010 when she informed Centrelink of her intention to claim DSP.[1] On 26 August 2011, the applicant sought review of the decision to grant her DSP from 19 October 2010. She then contended that the start date for DSP should be 14 June 2007. On 3 November 2011, an ARO affirmed the decision to grant the claim from 19 October 2010. On 20 January 2011, the SSAT affirmed the decision to grant DSP from 19 October 2010.
[1] Social Security (Administration) Act 1999 (Cth), s 13(2).
WORKPLACE INJURY
On 12 April 2007, the applicant suffered a workplace injury when she was working on a strawberry farm where she was required to lift boxes and bags that weighed in excess of 30 kilograms. From June 2007 to 18 October 2010, the applicant was given newstart allowance. From 30 May 2007 to 27 September 2007 she also received periodic compensation payments totalling $3,114.60.[2] On 23 December 2010, Centrelink was advised by WorkCover Queensland (WorkCover) that the applicant had settled her compensation claim for $104,764.10: this had occurred on 16 December 2010.
[2] See Exhibit A, T-document 13, p. 84.
On 29 December 2010, Centrelink made a decision to impose a compensation preclusion period from 28 September 2007 to 18 December 2008 and to recover a compensation charge in the amount of $17,470.12. On the same date, a Compensation Recovery Notice was sent to WorkCover. On 26 August 2011, the Applicant sought review of the decision to recover the compensation charge. On 2 November 2011, an ARO affirmed the decision to recover the charge amount. On 20 January 2012, the SSAT affirmed the decision to recover the charge amount.
ISSUES
I have to decide whether DSP can be granted at an earlier date than 19 October 2010. I also have to consider whether the decision to recover a compensation charge of $17,470.12 is correct.
RELEVANT LEGISLATION
The legislation that I have to administer in considering this application is the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
START DATE FOR DISABILITY SUPPORT PENSION
The applicant initially contended that the start date of DSP should be the date when she first lodged a claim for DSP; that is 14 June 2007. Before me, the applicant stated that she had received legal advice that she was eligible to receive DSP from 2009, although she quite frankly stated that she was unable to give me the reasons for this advice. I do not accept that this advice is correct. Later in my reasons I explain why my view is that social security law does not allow backdating to occur so as to confer a DSP benefit for her from 2009.
Clause 3 of Schedule 2 of the Administration Act provides the general rule for the start date of a benefit or allowance. It provides as follows:
(1) If:
(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.
Under social security law there can be the “backdating” of benefits in limited circumstances and for limited periods. The maximum backdating period that is provided for in the legislation is 13 weeks.
Section 13(2) of the Administration Act allows for backdating in a case such as where illness prevents a person from lodging a claim after the initial intention to make a claim is communicated to Centrelink: this is not the case here.
Section 12 of the Administration Act also allows for backdating where a person is already in receipt of an income support payment. It provides:
(1) The Secretary may determine that, for the purposes of the social security law, a person is taken to have made a claim for an income support payment (the new payment ), if:
(a) the person became qualified for the new payment while receiving another income support payment; or
(b) the person became qualified for the new payment immediately after ceasing to receive another income support payment.
(2) The person is taken to have made the claim for the new payment on the day specified in the Secretary's determination. That day must not be earlier than:
(a) the day that is 13 weeks before the day on which the Secretary's determination is made; or
(b) if the person became qualified for the new payment after the day referred to in paragraph (a)--the day on which the person became qualified for the new payment.
The respondents have submitted that for s 12 of the Administration Act to apply in this case it is necessary that the applicant must have been qualified for DSP before 19 October 2010. The respondent initially contended that the applicant cannot be said to have been qualified for DSP before 19 October 2010 as there is no evidence that her impairment was fully diagnosed, treated and stabilised prior to this date.
For the applicant to be qualified for DSP her impairment must be 20 points or more under the Impairment Tables[3] and she must have a continuing inability to work[4]. There is no issue that the applicant has a continuing inability to work. However, before a rating can be assigned under the Impairment Tables, the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.[5] The condition must also be considered to be permanent, in that it will persist for more than two years.[6]
[3] Schedule 1B of the Act, Tables for the assessment of work-related impairment for disability support pension.
[4] Section 94(1)(c)(i) of the Act.
[5] See Introduction to the Impairment Tables, Schedule 1B of the Act, para 4.
[6] See Introduction to the Impairment Tables, Schedule 1B of the Act, para 5.
When Centrelink made its decision on 16 December 2010, it was not aware of all of the medical treatment that had been received by the applicant. In particular, she had not advised Centrelink of the treatment of her depressive condition that had occurred before 19 October 2010. However, at the hearing the applicant gave unchallenged evidence of such treatment before 19 October 2010.
At the outset of the hearing I advised the applicant that in considering her application this Tribunal is not confined to a consideration of the evidence that was before Centrelink and the SSAT. I made that observation because the submissions of the applicant contained medical reports that were not before Centrelink or the SSAT when they considered her claim.
In Re Elston and Australian Community Pharmacy Authority,[7] Deputy President D P Breen emphasised, at 128:
Proceedings before the Administrative Appeals Tribunal are proceedings de novo. It is well established principle that the task of the tribunal is to arrive at the correct and preferable decision and that it is to do on the material before it. It is inherent in that principle that the material before the tribunal [sic] may well be different from the material before the … determining authority making the reviewable decision. Experience has shown that inevitably it is, often to a marked degree.
This is such a case as adverted to by Deputy President D P Breen, where the material before this Tribunal differs from the material that was available to the various decision-makers.
[7] (1996) 44 ALD 126.
The applicant gave evidence that for the past 14 months she has been receiving weekly treatment, for her long-standing depressive condition, from Dr Christian Heim, consultant psychiatrist. This treatment commenced well before the date of 16 September 2010, which is the earliest date to when backdating can occur under s 12 of the Administration Act. Dr Heim, in his recent letter of 18 May 2011, confirmed that the treatment has continued to stabilise her situation.
In his report of 8 December 2010, Job Capacity Assessor (JCA) Mr David Irving, who assessed the applicant on 30 November 2010, wrote that the applicant’s depressive condition was permanent and fully diagnosed, treated and stabilised. Centrelink used this report to determine that the applicant was qualified for DSP when she contacted them on 19 October 2010.
At the hearing I advised the parties that I would make an inference, based on the report of 8 December 2010, the letter of Dr Heim and the applicant’s oral evidence, that the depressive condition of the applicant was stabilised by Dr Heim’s weekly treatment by 16 September 2010. In the circumstances where the applicant has been living in a vehicle and been attacked and fearful for her safety, her decision that she would not receive medication that could sedate her is understandable and would not constitute a refusal of treatment that is reasonably available to her.
The applicant also gave evidence that the treatment of her back condition has been ongoing since her workplace injury in 2007. She gave evidence of her treatment for the back condition. She has received medical advice to undertake swimming in a warm pool as well as to take pain medication when needed. The back condition is certainly stabilised. The job capacity assessor, in his report of 8 December 2012, wrote that the condition was permanent and fully diagnosed, treated and stabilised. He also noted that the symptoms and functioning of the back condition have not improved during the past 3.5 years.
It has already been accepted that the impairments of the applicant were fully diagnosed, treated and stabilised as at 19 October 2010 and I have made an inference that this was the case also in the previous month. I am satisfied that the back and the depressive conditions, which are the impairments suffered by the applicant, were permanent and had been fully diagnosed, treated and stabilised before 16 September 2010.
In the circumstances I find that the applicant was qualified for DSP on a date earlier than 19 October 2010, namely on 16 September 2010. I decide that it is appropriate to exercise the discretion to backdate the claim of the applicant to 16 September 2010. This date is 13 weeks before the decision was made on 16 December 2010. The social security legislation does not enable me to backdate the claim to any earlier date.
COMPENSATION CHARGE
Section 1169(1) of the Act provides that a compensation affected payment is not payable to a person who receives a lump sum compensation payment. Section 17(1)(c) of the Act also provides that newstart allowance is a compensation affected payment.
Sections 17(1) and (2) of the Act provide:
(1) In this Act, unless the contrary intention appears:
“compensation” has the meaning given by subsection (2)
...
(2) Subject to subsection (2B), for the purposes of this Act, compensation means:
(a) a payment of damages; or
(b) a payment under a scheme of insurance or compensation under a Commonwealth, State or Territory law, including a payment under a contract entered into under such a scheme; or
(c) a payment (with or without admission of liability) in settlement of a claim for damages or a claim under such an insurance scheme; or
(d) any other compensation or damages payment;
(whether the payment is in the form of a lump sum or in the form of a series of periodic payments and whether it is made within or outside Australia) that is made wholly or partly in respect of lost earnings or lost capacity to earn resulting from personal injury.
I am satisfied that the lump sum payment that the applicant received on 16 December 2010 was a payment of “compensation” as defined under the Act. This is because it was made partly in respect of lost earnings or lost capacity to earn resulting from her personal injury. This is evidenced by a document provided by the applicant entitled, “Counsel's Summary of Damages”. The document lists the claimed heads of damages which includes past and future economic loss. During the hearing the applicant was under the misapprehension that this document was a WorkCover document, but I pointed out to the applicant that the document bears the signature of her lawyer.
Section 17(3) of the Act provides that the “compensation part” of the lump sum payment, that is, the part to be used to calculate the preclusion period is 50% of the payment. In accordance with s 17(4) of the Act, any periodic compensation payments are first deducted from the lump sum amount. Accordingly, the preclusion period should be calculated using 50% of the remainder of $104,764.10 minus the periodic payments of $3,114.60[8], which is $50,824.75.
[8] See Exhibit A, T-document 13, p. 84.
The preclusion period is calculated under section 1170 of the Act, which states:
(1) Subject to subsection (2), if a person receives both periodic compensation payments and a lump sum compensation payment, the lump sum preclusion period is the period that:
(a) begins on the day following the last day of the periodic payments period or, where there is more than one periodic payments period, the day following the last day of the last periodic payments period; and
(b) ends at the end of the number of weeks worked out under subsections (4) and (5).
(2) If a person chooses to receive part of an entitlement to periodic compensation payments in the form of a lump sum, the lump sum preclusion period is the period that:
(a) begins on the first day on which the person's periodic compensation payment is a reduced payment because of that choice; and
(b) ends at the end of the number of weeks worked out under subsections (4) and (5).
(3) If neither of subsections (1) and (2) applies, the lump sum preclusion period is the period that:
(a) begins on the day on which the loss of earnings or loss of capacity to earn began; and
(b) ends at the end of the number of weeks worked out under subsections (4) and (5).
(4) The number of weeks in the lump sum preclusion period in relation to a person is the number worked out using the formula:
Compensation part of lump sum
Income cut-out amount
(5) If the number worked out under subsection (4) is not a whole number, the number is to be rounded down to the nearest whole number.
As the Applicant received both periodic payments and a lump sum payment the start date for the preclusion period begins on the day after the last day of the periodic payment period; thus the start day is 28 September 2007.
I have calculated the lump sum preclusion period on a different basis to that submitted by the respondent. At the date of the settlement the income cut-out amount was $789.10. The compensation part of the lump sum ($50,824.75) divided by $789.10 amounts to 64.40, which has to be rounded down to the nearest whole number: see s 1170(5) of the Act. Accordingly the preclusion period is 64 weeks. I am satisfied that the lump sum preclusion period, even with the alteration of some of the amounts submitted by the respondent, is still properly calculated as running from 28 September 2007 to 18 December 2008.
Regardless of the differences in the amounts used to calculate the preclusion period, there is no issue that the period has not been properly calculated as running between 28 September 2007 and 18 December 2008 pursuant to section 1170(4) of the Act. The applicant, who has had the benefit of legal advice, has not raised any objection to the calculation of the preclusion period. Before settlement was reached the applicant was advised of the likely imposition of a preclusion period and was provided with an estimate of the length of any such period.
The amount recoverable from the applicant is calculated in accordance with s 1179 of the Act which provides:
The recoverable amount under this section is equal to the smaller of the following amounts:
(a) the compensation part of the lump sum compensation payment;
(b) the sum of the payments of the compensation affected payment made to the person in relation to a day or days in the lump sum preclusion period.
The sum of the payments of the compensation affected payment made to the applicant in relation to the preclusion period is $17,470.12. I am satisfied that this amount was properly recoverable from the applicant.
There are, in my view, no “special circumstances” which would warrant disregarding part or all of the lump sum payment, thereby shortening the preclusion period in the exercise of discretion under s 1184K of the Act. While the Act does not define what is meant by “special circumstances”, it has been accepted that such circumstances would be circumstances which are “unusual, uncommon or exceptional”.[9] There is evidence before me that the applicant has had to pay considerable expenditure for repairs to the vehicle in which she lived. In considering the exercise of the discretion under s 1184K of the Act, I recognise that most recipients of social security have straitened circumstances. I am also mindful, as earlier mentioned, that the applicant was for a time in receipt of newstart allowance as well as periodic compensation payments.[10] The compensation charge has already been recovered, the applicant currently receives DSP, and she has a pensioner concession as well as a health care card. She also advised me that she is now in satisfactory accommodation.
[9] ReBeadle and Director-General of Social Security (1984) 6 ALD 1.
[10] Cf., Secretary, Department of Family and Community Services v Allan (2001) 66 ALD 147.
The job capacity assessor, in his report of 8 December 2012, referred the applicant to a local social work team. I consider that this has been beneficial for the applicant. I would recommend that a social worker should continue to provide assistance to the applicant.
I wish to record my assistance from Ms Smith who has quite properly recognised that all the circumstances of the applicant were not disclosed to Centrelink. She has also assisted this Tribunal by ensuring that all of the submissions of the applicant were filed at the registry of this Tribunal. Those submissions included the report of Dr Heim which had not been previously provided to Centrelink.
DECISION
I vary the decision of 16 December 2010 by granting the applicant disability support pension from 16 September 2010 instead of 19 October 2010. I affirm the decision of 20 January 2012 to recover a charge amount of $17,470.12 from the applicant's compensation settlement.
I certify that the preceding 37 (thirty -seven) 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 8 June 2012
Date(s) of hearing 30 May 2012 Applicant In person Advocate for the Respondent Donna Smith
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Disability Support Pension
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Backdating of Benefits
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Compensation Charge
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Repayment of Benefit
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