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

[2023] AATA 2912

Watts and Secretary, Department of Social Services (Social services second review) [2023] AATA 2912 (14 September 2023)

Division:GENERAL DIVISION

File Number:          2023/3038

Re:Marlene Watts

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:14 September 2023

Place:Melbourne

The decision under review is affirmed.

..................................[SGD]......................................

Dr L Bygrave, Member

Catchwords

SOCIAL SECURITY – disability support pension – start date of claim – where two previous unsuccessful applications for disability support pension were finalised – where Applicant contacted the Department before lodging successful disability support pension claim – whether Applicant is included in a class of persons in the Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018 – decision under review affirmed

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Dranichnikov v Centrelink [2003] FCAFC 133

Secondary Materials

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

REASONS FOR DECISION

Dr L Bygrave, Member

14 September 2023

1. The Applicant, Ms Marlene Watts, lodged a claim for disability support pension on 10 March 2022. On 1 August 2020, an authorised review officer at Services Australia determined that Ms Watts met the criteria in subsection 94(1) of the Social Security Act 1991 (Cth) (the Act) and granted her disability support pension effective from 10 March 2022.[1]

   [1] Exhibit T-T14.

2. Ms Watts applied to the Social Services and Child Support Division (AAT1) of the Tribunal for review and, on 18 April 2023, the AAT1 affirmed the decision under review.

3. On 2 May 2023, Ms Watts lodged an application for review with the General Division of the Tribunal seeking payment of her disability support pension prior to 10 March 2022 on the basis that she had made earlier claims for disability support pension on 9 November 2020 and 22 March 2021.

4. The matter was heard by the Tribunal on 8 September 2023. Ms Watts attended the hearing and gave oral evidence by teleconference, and the solicitor representing the Secretary appeared by videoconference.

   CONSIDERATION

5. The statutory provisions relevant to this matter are set out in the Act and the Social Security (Administration) Act 1999 (the Administration Act).

   Qualification for disability support pension

6. Subsection 94(1) of the Act sets out the qualification criteria for disability support pension and includes the requirement for Ms Watts to show she has:

   ·a physical, intellectual or psychiatric impairment (see paragraph 94(1)(a)); and

   ·an impairment rating of 20 points or more under the Impairment Tables (see paragraph 94(1)(b)); and

   ·a continuing inability to work (see paragraph 94(1)(c)).

7. Section 42 and Schedule 2 to the Administration Act require that Ms Watts must satisfy the qualification criteria on the date she made her claim for disability support pension or within the following 13 weeks.

   Claim for social security payment – start date

8. Sections 11 and 16 of the Administration Act state that a person who wants to be granted a social security payment must make a claim either in writing or in an approved manner. Schedule 2, subclause 3(1) of the Administration Act provides, as a general rule, that if a person claims a payment and is qualified on the day they make their claim, ‘the person’s start date in relation to the payment is the day on which the claim is made’.

9. Ms Watts has been paid disability support pension from 10 March 2022, the date she made her claim for disability support pension and was qualified for the payment. Therefore, the sole issue for determination by the Tribunal is whether Ms Watts can be granted disability support pension from a date prior to 10 March 2022.

   Can Ms Watts be paid disability support pension from the dates of her earlier claims made on 9 November 2020 and 22 March 2021?

10. Ms Watts made written and oral submissions to the Tribunal that she was told by Services Australia staff she would be back paid disability support pension to the date of her first claim for disability support pension made on 9 November 2020.

11. I am satisfied the documents before the Tribunal show:

    ·Ms Watts made a claim for disability support pension on 9 November 2020. This claim was rejected by Services Australia on 10 November 2020 on the basis that she did not have 20 impairment points or more as required by paragraph 94(1)(b) of the Act. An authorised review officer of Services Australia affirmed this decision on 19 January 2021 and Ms Watts did not seek further review of this decision.

    ·Ms Watts made a further claim for disability support pension on 22 March 2021. Services Australia rejected this claim on 1 June 2021 on the basis that she did not meet the requirement of 20 impairment points or more in paragraph 94(1)(b) of the Act. This decision was affirmed by an authorised review officer of Services Australia on 11 August 2021 and the AAT1 on 17 February 2022. Ms Watts did not seek further review of this decision.

12. Both the claims for disability support pension lodged by Ms Watts on 9 November 2020 and 22 March 2021 have been finalised because she did not seek further review.

13. I am satisfied that Ms Watts cannot be paid disability support pension from either 9 November 2020 or 22 March 2021 because she did not meet the qualification requirements for disability support pension set out in subsection 94(1) of the Act on either 9 November 2020 (or the subsequent 13 weeks) or 22 March 2021 (or the subsequent 13 weeks).

    Does Ms Watts meet the criteria for a deemed claim under either section 12 or section 13 of the Administration Act?

14. Subsection 12(1) of the Administration Act outlines that a deemed claim for an income support payment may occur in cases where (amongst other matters) a person either ‘became qualified for the new payment while receiving another income support payment’ or ‘became qualified for the new payment immediately after ceasing to receive another income support payment’.

15. The evidence before the Tribunal shows Ms Watts was not in receipt of another income support payment either on or immediately prior to 10 March 2022. Consequently, I am satisfied the provisions in section 12 of the Administration Act cannot apply to Ms Watts.

16. Subsections 13(1), (2), (3) and (3A) of the Administration Act set out circumstances where a claim can be deemed to be made where a person contacts the Department about a claim for a social security payment and ‘on the day on which the Department is contacted’ is included in ‘a class of persons’ set out in the Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018 (Cth) (the Determination).

17. Services Australia records show Ms Watts made contact by telephone on 23 February 2022 regarding her disability support pension claim as follows:

    Customer has advised that the medical report that needs to be supplied will not be uploaded until 04/0/2022 [sic] – 05/03/2022 because they are unable to attend their doctor until then as that was the next availability.[2]

    [2] Exhibit T-T17, 322.

18. I find that Ms Watts contacted the Department in relation to her claim for disability support pension on 23 February 2022, a date prior to lodging her claim on 10 March 2022.

19. Section 5 of the Determination states the following in relation to the application of section 13 of the Administration Act:

    For the purposes of paragraphs 13(1)(aa), (2)(aa), (3)(aa) and (3A)(aa)…of the [Administration] Act, a person is in a class of persons if the person is unable to lodge a claim on the contact day because, at any time during the relevant period, the person is:

    (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 control.

20. Ms Watts gave oral evidence at the Tribunal hearing about her circumstances in the period from 23 February 2022 to 10 March 2022. Although Ms Watts accepted that she did not meet the circumstances in paragraphs 5(a)-(b) and 5(d)-(j) of the Determination, she submitted that paragraphs 5(c) and/or 5(k) could apply to her situation.

21. Ms Watts said she was ‘suffering from a temporary incapacity arising from a medical condition’ consistent with paragraph 5(c) of the Determination. I note there is no supporting medical evidence referring to a ‘temporary incapacity’ and Ms Watts said that this condition did not prevent her from lodging the claim on 23 February 2022; rather, the delay in her lodging her claim for disability support pension was because she was waiting for an appointment with her general practitioner. She also accepted her medical conditions did not prevent her from phoning Services Australia or from making an application for disability support pension online in the period from 23 February 2022 to 10 March 2022.

22. Ms Watts also submitted that paragraph 5(k) of the Determination could apply because she was experiencing special circumstances beyond her control. In particular, she raised issues about the complex process of lodging a claim for disability support pension and said she had to wait for an appointment with her general practitioner because of delays related to the COVID pandemic. I note that consideration of special circumstances involves deliberation as to whether there are circumstances in the particular case that suggest there are exceptional or unusual circumstances, or circumstances that ‘distinguish the case in consideration from the usual case’.[3] While I acknowledge Ms Watts experienced difficulties understanding the requirements of the Act and obtaining medical evidence, unfortunately, I cannot find this situation between 23 February 2022 and 10 March 2022 was exceptional or unusual, or beyond Ms Watts’ control.

    [3] Dranichnikov v Centrelink [2003] FCAFC 133 at [65]-[66].

23. As I am satisfied Ms Watts is not in ‘a class of persons’ set out in the Determination, I find she does not meet the requirements for a deemed claim in section 13 of the Administration Act.

    CONCLUSION

24. For these reasons, I do not find Ms Watts can be paid disability support pension prior to 10 March 2022, which is the date she made her claim for disability support pension and was qualified for the payment.

    DECISION

25. The decision under review is affirmed.

I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 14 September 2023

Date of hearing:	8 September 2023
Applicant:	Self-Represented
Advocate for the Respondent:	Ms Kathryn Lieschke
Solicitors for the Respondent:	Services Australia - Litigation Branch