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

[2021] AATA 1736

Tang and Secretary, Department of Social Services (Social services second review) [2021] AATA 1736 (2 June 2021)

Division:GENERAL DIVISION

File Number(s):      2020/7656

Re:Zi Guang Tang

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member Reitano

Date:2 June 2021

Place:Sydney

I affirm the decision of AAT1 that the start date for Mr Tang’s disability support pension is 2 September 2020.

....................[sgd]....................................................

Member Reitano

CATCHWORDS

DISABILITY SUPPORT PENSION – review of start date of claim –  previous reviews before the Administrative Appeals Tribunal – relevance of hardship or other personal circumstances - decision under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Act 1991 (Cth)

Social Security (Administration Act) 1999 (Cth) s 13, 14A, 41, 42

SECONDARY MATERIALS

Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018

REASONS FOR DECISION

Member Reitano

2 June 2021

1. The rights associated with social security payments, like disability support pensions, are governed by rules made by Parliament, which are in the Social Security Act 1991 (Cth) and the Social Security (Administration Act) 1999 (Cth) (Act). The rules about the process of administrative decision-making and review of decisions concerning the making of those payments are also found in those Acts as well as the Administrative Appeals Tribunal Act 1975.

2. It is the role of officers of the Department in making and reviewing decisions, and the Tribunal in reviewing those decisions, to apply the rules. It is no part of the role of officers of the Department, or of the Tribunal on review, to make the rules; their role is only to apply them. Their position is much the same as that which applies in sporting contests where the only role of the referee or umpire is to apply the rules and not to make or change the rules.

3. In this review the Tribunal, according to the rules, can only review the decision of the Administrative Appeals Tribunal (Child Support and Social Security Division) (AAT1) from which this application is brought. It has no power to review any earlier or other decisions of AAT1 or of the Tribunal. The rules provide that it is for others and not the Tribunal itself to review its earlier decisions.

   WHAT THIS CASE IS ABOUT

4. This case concerns the rules about the date that payments for a disability support pension start and the rules about reviewing decisions about that issue.

5. AAT1 reviewed the decision of an authorised review officer, who is an independent officer specially authorised by Services Australia to review decisions made by Services Australia. The authorised review officer decided that Mr Tang’s disability support pension was payable from 2 September 2020 and not earlier.

6. AAT1, the authorised review officer and before that Services Australia all decided that that the rules meant that the correct decision was that Mr Tang be paid his disability support pension from 2 September 2020 and not before because the rules did not allow them to  make a decision that it should be paid from some earlier time.

7. I also have decided that the decision that Mr Tang’s disability support pension is payable from 2 September 2020 is the correct decision and that none of the rules applicable to the payment of disability support pensions allow for any different decision to be made. I explain below why I have come to this conclusion.

   WHAT HAPPENED

8. On 2 September 2020 Mr Tang made a claim for a disability support pension. He did that by filling out a form of some 32 pages in length with about 193 questions or requests for information, signing it, and lodging it on 2 September 2020. Centrelink documents show that the claim was lodged that day.

9. On 10 September 2020 Centrelink rejected Mr Tang’s claim for a disability support pension because it considered that Mr Tang did not qualify for a disability support pension.

10. On 22 October 2020 after a review of that decision rejecting the claim, an authorised review officer granted Mr Tang his disability support pension and indicated that payments would be back dated to 2 September 2020, the date that the claim was made.

11. Mr Tang sought a review of that decision so far as it only backdated the payment of his disability support pension to 2 September 2020. He said it should be backdated to some time in 2017. That decision was the subject of the review by an authorised review officer and then AAT1, who affirmed the ARO’s decision on 9 December 2020.

    WHAT MR TANG WANTS

12. Mr Tang wants the Tribunal in this review to back date his disability support pension to 2013 which is a date when he says he was receiving another social security payment known as the Newstart Allowance. He says he should have been receiving a disability support pension since then.

13. Alternatively, so it would seem, Mr Tang says his disability support pension should be back dated to sometime in 2017, presumably 27 June 2017, or to 8 April 2019 which are both times when Mr Tang made earlier claims for disability support pension. He was found on both of those two previous occasions not to qualify for a disability support pension. Those earlier applications were the subject of reviews by, amongst others, AAT1 and the Tribunal, and decisions were made that Mr Tang was not qualified to be paid a disability support pension at those long ago times.

14. Mr Tang, so it would seem, does not consider that there should be any limitation on the matters that the Tribunal can consider in his review.

    THE RULES ABOUT START DATE FOR PAYMENTS

15. The combined effect of s.13 and s.14A of the Act allows for payments of disability support pension to be backdated to the date that a person first contacts the Department so long as the claim is made within 14 days of the contact and not more than 13 weeks after the contact. For that to apply the particular person must be within the class of people prescribed by s.14A, contained within the class of people described in the Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018. The person must be within one or other of the following categories:

    (a)Subject to domestic or family violence;

    (b)Homeless;

    (c)Hospitalised or suffering from a temporary incapacity arising from a medical condition;

    (d)Released from prison or psychiatric confinement;

    (e)Experiencing high stress associated with a relationship separation;

    (f)A parent of a dependent child born during the relevant period;

    (g)Affected by the death during the relevant period of an immediate family member;

    (h)A person who entered Australia during the relevant period as a humanitarian entrant to Australia;

    (i)A person whose usual place of residence is in a remote area, and the person is physically present in the remote area;

    (j)A person whose principal place of residence was lost or sustained major damage during the relevant period as a result of an extreme circumstance; or

    (k)Subject to other special circumstances beyond the person's

16. Section 41 of the Act provides:

    Commencement

    (1)Unless 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.

    (2)Unless another provision of the social security law provides otherwise, a concession card takes effect on the person's start day in relation to the card.

17. Section 42 of the Act provides:

    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.Clause 3 of Schedule 2 to the Act so far as is relevant provides:

    (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.

18. These are the only rules that are to be used to decide the date from which a disability support pension is to be paid. Although there are other rules for when other social security payments and benefits start, the only one that concerns the date from which disability support payment is to be paid is the one in Clause 2(1) of Schedule 2.

    THE EFFECT OF THE RULES

19. There is no evidence or information that would enable me to decide that Mr Tang falls within the class of people described in the Determination to which s.13 refers.

20. In any event, that does not appear to be Mr Tang’s case, as even if he were in the class of people to whom s.14A refers his payment could only be back dated to the date of his telephone contact with Centrelink in late August 2020. He made no other contact within the 13 weeks before his claim on 2 September 2020. His claim cannot be backdated under this part of the rules concerning the start date for payment of a disability support pension.

21. Next, I need to apply the rules in Clause 3(1) of Schedule 2. That clause creates a rule that a disability support payment is to be paid from the date that a claim is made, and the person qualified on that day for the payment. The words ‘on that day’ refer to the date of a claim. The person must be found to have been qualified for a disability support pension on the date of their claim.

22. Mr Tang’s claim was made on 2 September 2020. Mr Tang was found to have qualified on 2 September 2020 for a disability support pension. To make it clear, he was not ever found to have qualified to be paid a disability support pension before then. His disability support pension is to be paid, according to that rule, from that day: that is, from 2 September 2020.

    DO THE RULES PERMIT PAYMENT FROM AN EARLIER DATE?

23. In 2013 Mr Tang had not made any claim for a disability support pension and nor was there any finding at all that he was qualified to receive a disability support pension at that time. Therefore, his payment cannot be paid from that day even if he were receiving some other social security payment at that time. The rules do not allow for backdating his start date to 2013 or the time when he started receiving his Newstart Allowance.

24. In 2017, the only claim that was made by Mr Tang for a disability support pension was made on 27 June 2017. It was found by all of the decision makers, including AAT1 and the Tribunal on review, that under the rules Mr Tang was not qualified for a disability support pension on that day. As Mr Tang was not qualified on that day, 27 June 2017, to receive a disability support pension, he cannot be paid a disability support pension from that day simply because he was not at that time qualified to receive a disability support pension.

25. On 8 April 2019 Mr Tang made another claim for disability support pension. That claim was dealt with in the same way as his previous claim ,with all of the decision makers including AAT1 and the Tribunal on review deciding that under the rules Mr Tang was not qualified on that day to receive a disability support pension. As Mr Tang was not qualified on that day, 8 April 2019, to receive a disability support pension, he cannot be paid a disability support pension from that day.

26. Although Mr Tang says he will suffer ‘crisis’ or hardship if the payment of his disability support pension is not backdated so as to start from to 2013 or 2017 or 2019, the rules simply do not allow that to happen. The question of hardship or crisis or any other personal circumstances at all do not determine when a disability support pension can be paid from. Similarly, the fact that he has, or may have, debt to the Services Australia is not something I am able to take into account so far as the start day for the payment of his disability support pension is concerned. Those things are not relevant to determining the start date for the payment of a disability support pension.

    DECISION

27. I affirm the decision of AAT1 that the start date for Mr Tang’s disability support pension is 2 September 2020.

I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Member Reitano

..........................[sgd]..............................................

Associate

Dated: 2 June 2021

Date(s) of hearing: 3 May 2021 (on the papers)