Topham and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1468
•2 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1468
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q200600826
GENERAL ADMINISTRATIVE DIVISION ) Re PETER TOPHAM Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Dr KS Levy, RFD, Senior Member Date2 May 2007
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ...........[Sgd]............
KS Levy
Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – consideration of when entitlement to disability support pension began – whether Centrelink owed a duty of care to the applicant – special circumstances – applicant did not return claim form within 14 days – decision affirmed
Administrative Appeals Tribunal Act 1975 (Cth) ss 29, 37
Social Security (Administration) Act 1999 (Cth) ss 3, 11, 13, 16
Scott v Secretary, Department of Social Security (2000) 65 ALD 79
Evans and Secretary, Department of Family and Community Services (2002) 71 ALD 183
ReBeadle and Director-General of Social Security (1984) 1 AAR 362
Groth v Secretary, Department of Social Security (1995) 40 ALD 541WRITTEN REASONS FOR ORAL DECISION
26 June 2007 Dr KS Levy, RFD, Senior Member
Introduction
1. Peter Topham was approved to be paid disability support pension from 9 August 2006. He was previously on newstart allowance but following an accident in the workplace in which he incurred a head injury, Centrelink referred him for a work capacity / participation assessment which was undertaken on 1 March 2006. That assessment indicated that Mr Topham may have qualified for disability support pension.
2. Mr Topham maintains that he should be entitled to be paid disability support pension from 1 March 2006, rather than 9 August 2006 when it was ultimately approved. He has previously appealed to the Social Security Appeals Tribunal, who rejected that appeal. He now seeks a review of that decision to this Tribunal under s 29(1) of the Administrative Appeals Tribunal Act 1975.
3. An oral decision was provided to Mr Topham at the conclusion of the hearing. A detailed analysis of that decision is contained herein.
Issues
4. The Tribunal must determine the following questions:
(i) Was there a duty of care owed by Centrelink to assist Mr Topham in applying for a disability support pension?; and
(ii) Are there special circumstances which indicate that disability support pension should be paid from 1 March 2006, rather than 9 August 2006?
Evidence
5. The Tribunal had before it the documents lodged under s 37 of the Administrative Appeals Tribunal Act1975 (T documents, Exhibit 1). Mr Topham also submitted to the Tribunal a copy of documents relating to his common law damages claim provided by his solicitors and including references to and quotes from a number of medical reports (Exhibit 2).
6. Mr Topham gave evidence that he was referred for assessment as to work capacity by Centrelink. He subsequently completed a claim form for payment of disability support pension (T6, folios 19-41). Mr Topham stated that in March 2006, he attended an interview at Centrelink and was given the application form for disability support pension. He had available reports from neurologists as to his condition. He maintains the form should have been completed at that time by the Centrelink officer and been paid on the strength of the work capacity assessment report.
7. In cross-examination, Mr Hamilton referred the applicant to his claim form and drew his attention to folio 41. The applicant indicated that he had signed that form on either 23 or 25 July 2006. The writing was not entirely clear but it was accepted it was signed between 20 and 29 July 2006.
8. In summary, the relevant evidence is as follows:
(i) Centrelink referred the applicant for a work capacity/participation assessment report
(ii) Following that assessment, it was indicated to Mr Topham that he may be entitled to disability support pension. He would however have to complete the application form. This was provided to him on 2 March 2006.
(iii) As the application was not returned to Centrelink, Centrelink wrote again to Mr Topham on 21 July 2006 and enclosed a further copy of the disability support pension application form. That form was signed on 25 July 2006 (approximately) but it was not received at Centrelink until 9 August 2006.
(iv) It was approved that Mr Topham receive disability support pension on and from 9 August 2006.
(v) A neurosurgeon, Dr Michael Weidmann, was of the opinion that Mr Topham suffered a 5% whole person impairment as a result of his head injury. His assessment of clinical dementia specifically indicated he may have between 1% and 14% impairment as a result. Dr Weidmann initially determined Mr Topham had a 5% whole person impairment. Dr Weidmann subsequently re-assessed Mr Topham as having 6% whole person impairment. This determination was based on Dr Weidmann’s assessment of Mr Topham also having headaches. He said “[w]hile I accept Mr Topham has ongoing headaches, I am not sure they increase his burden substantially. In my opinion he would have a 1% impairment of the whole person for headaches…”
(vi) Mr Topham’s own evidence was that he kept a diary so that he would follow up on matters of importance or of concern to him. He conceded that he would have made a note in his diary to lodge the application forms but failed to do so.
(vii) Mr Topham also agreed that he had received the form initially on 2 March 2006 but had put it aside. He received the form with the letter dated 21 July 2006 and indicated that he completed the form quickly as it was dated 25 July 2006. He also believed he would have made a note in his diary to return that form but failed to do so until 9 August 2006. This was 19 days later, not 14 days which is the prescribed period within which the application must be received.
Consideration
9. I have taken into account all of the oral and written evidence and considered all the relevant statutory and case law.
Issue One: Does Centrelink owe a duty of care to assist Mr Topham to complete the application?
10. This question arose as the Social Security Appeals Tribunal (SSAT) in their decision of 27 October 2006, indicated “…Centrelink might in some circumstances breach a duty of care to clients in the management of their file. It might be the case that Centrelink could have been more proactive in alerting Mr Topham as to his possible entitlement to disability support pension...” Mr Hamilton argued that that statement by the SSAT failed to give recognition to the true facts. He pointed out that the interview on 2 March 2006 resulted in the disability claim form being dispatched on 3 March 2006 (T4, folio 17). Mr Hamilton suggested that perhaps the SSAT did not have that record available to it.
11. Mr Hamilton also drew my attention to Scott v Secretary, Department of Social Security (2000) 65 ALD 79. That was a decision of the Full Court of the Federal Court where the majority (Beaumont and French JJ) upheld the judgment at first instance where Heerey J held that “…the Act is not to be interpreted as indicating an intention to confer a private right of action for a breach of any of its provisions now in question…” and that “…there was no general common law duty of care to advise the appellants of benefits that might potentially be available under the Act” [at 19-20]. Subsequent application for special leave to appeal to the High Court was refused. Likewise, in the decision of this Tribunal of Evans and Secretary, Department of Family and Community Services (2002) 71 ALD 183, the Tribunal held that Centrelink did not have a duty of care to advise the applicant of her possible entitlement to mobility allowance at a time when she made a claim for disability support pension (see Social Security and Family Assistance Law, 2nd Edition, Federal Press 2005 at 7.04 SSA (see pages 669-670)).
12. I therefore find that Centrelink did not owe a duty of care to assist Mr Topham any further. Indeed, as was submitted to me it is difficult to see what else Centrelink could have done in this case or could have done more speedily. The initial identification of potential entitlement to disability support pension was identified by Centrelink on 2 March 2006. It forwarded the application form the very next day on 3 March 2006. That application was not acted upon by Mr Topham. Centrelink followed up again on 21 July 2006 and while he completed the form in a timely way, Mr Topham failed to return the form until 9 August 2006.
13. In the circumstances, I find there was no duty of care owed to Mr Topham.
Issue Two: Was Mr Topham entitled to disability support pension from 1 March 2006 or 9 August 2006?
14. The relevant legislation provides that payment of the pension claimed cannot commence until an applicant has submitted an application (see ss 3, 11 and 16 of the Social Security (Administration) Act 1999). Section 13(1) of that Act provides that if a claim form is returned within 14 days, then the relevant social security payment should occur from the day on which the Department was contacted. If the claim is lodged outside that 14 day period, then any payment would commence from the date on which the application is received.
15. Where a claim is received outside that 14 day period, the commencement date of payment of the social security benefit may be modified in certain circumstances. These are-
· If the form is lodged between 14 days and 13 weeks, consideration to having an earlier commencement date can be given if the applicant can show that he / she suffers a medical condition which had a significant adverse effect on his or her ability to lodge the form within the prescribed time (s 13(2));
· If the claim is lodged between 14 days and 13 weeks after being provided with the claim form, the commencement date again can be modified if an applicant can show that he / she was caring for another person who was suffering from a medical condition, and this had a significant adverse effect on his / her capacity to lodge the form with the prescribed time (s 13(3));
· If an applicant lodges the form between 14 days and 13 weeks after being provided with the form, then the applicant would need to demonstrate that there are “special circumstances” such that “…it was not reasonably practicable for the person to lodge the claim earlier” (s 13(3A)).
16. In considering these provisions I find as follows:
(i) s 13(2) is not satisfied as the extent of the medical condition (5-6% of the whole person impairment), is not sufficiently significant to justify invoking that provision. This is particularly so as the applicant has admitted to using a diary as a memory aid and that, together with the relatively small degree of incapacity, is not sufficient to satisfy me that it could have had a significant adverse effect on Mr Topham’s ability to complete and return the claim form within time. Indeed, the first form received in March 2006 was put aside and not pursued at all. When Centrelink followed the matter up in July, again, despite completing the form and using his diary to remind himself to submit the form, this still did not occur. The applicant’s own evidence indicates he cannot be exculpated with the aid of s 13(2) of the Act;
(ii) s 13(3) is not relevant to the applicant’s case and he led no evidence to indicate that it was relevant. In providing my oral decision, he confirmed to me that that was the case;
(iii) s 13(3A) deals with “special circumstances” and is the main provision on which the applicant can rely. He must show that there is something unfair, unintended or unjust in refusing to backdate the commencement of his disability support pension (see ReBeadle and Director-General of Social Security (1984) 1 AAR 362 at 364; Groth v Secretary, Department of Social Security (1995) 40 ALD 541). Mr Topham must therefore demonstrate some special circumstance which would be highly unusual or extraordinary. This might include a significant medical problem which goes beyond his control to satisfy the requirements of s 13(1); something outside his control, eg an accident, which prevented him from dealing with the application within the time prescribed; or something attributable to the negligence of Centrelink and for which he could therefore not be held responsible.
17. Mr Topham failed to show any circumstance relating to his short term memory that would explain why it was outside his control to submit the completed application form within 14 days. The medical problem and degree of incapacity was not sufficiently significant; there was no accident that physically prevented him from completing and returning the application form; and there was no evidence that showed any negligence by Centrelink. Indeed, as referred to earlier, Centrelink was particularly efficient in identification of the potential eligibility, despatch of the initial application form and its follow up some three months later.
18. In all the circumstances the applicant does not satisfy any of the statutory provisions relevant to justify deeming an earlier start date than 9 August 2006. Eligibility can only commence when there is an application form and this was received on 9 August 2006. There are no special circumstances applicable.
19. The decision under review is therefore affirmed.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy RFD Senior Member
Signed: Fiona Kamst
Legal Research OfficerDate/s of Hearing 2 May 2007
Date of Oral Decision 2 May 2007
Date of Written Reasons 26 June 2007
The Applicant was self-representedFor the Respondent Mr B Hamilton, departmental advocate
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