WILLIAM THOMAS and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS
[2009] AATA 868
•11 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 868
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2343
GENERAL ADMINISTRATIVE DIVISION ) Re WILLIAM THOMAS Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date11 November 2009
PlaceSydney
Decision The decision under review is set aside.
....................[Sgd]...................
Ms N Isenberg
Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether start date of payment is correct – date of actual lodgement of claim form – deemed claim when Department is contacted – whether special circumstances made earlier lodgement not reasonably practicable – decision under review set aside.
Social Security Act 1991 (Cth) s 900
Social Security (Administration) Act 1999 (Cth) ss 13, 13(3A), 16, 42, Schedule 2
Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9
Beadle v Director-General of Social Security (1985) 7 ALD 670
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304
REASONS FOR DECISION
11 November 2009 Ms N Isenberg, Senior Member decision under review
1. Mr Thomas was granted disability support pension (‘DSP’) from 24 October 2008, but contended that the start date should be earlier because a prior claim lodged with Centrelink was misplaced. He appealed to the Social Security Appeals Tribunal which found there was no evidence that Mr Thomas had lodged an earlier claim and Centrelink’s decision about the pension start date was affirmed. He now seeks review by this Tribunal.
issue before the tribunal
2. The issue before the Tribunal is whether Mr Thomas can be granted DSP from any date earlier than 24 October 2008.
3. Centrelink conceded that if DSP was payable on 14 October 2008, Mr Thomas would also be eligible for an Economic Security Strategy (‘ESS’) payment pursuant to subsection 900(2)(a)(ii) of the Social Security Act 1991 (‘the Act’).
legislation
4. The dispute concerns the date on which Mr Thomas’ claim for DSP was made. The relevant legislative provisions are set out in sections 13, 16, 42 and Schedule 2 of the Social Security (Administration) Act 1999 (‘the Administration Act’).
5. To be granted DSP, a claim must be made in accordance with Part 3, Division 1 of the Administration Act. A written claim must be lodged, in an approved form, by delivery to a person or place approved by the Secretary for the purpose: subsections 16(1), (2) and (4).
6. A person’s start day in relation to the social security payment is the day worked out in accordance with Schedule 2: section 42. Generally, the start date for payment is the day on which the claim is made. Section 13 of the Administration Act, however, contains provisions which allow a claim to be deemed to have been made on the date the Department was contacted by the person in relation to the making of the claim for the social security benefit. These provisions can only apply if certain specific criteria have been met.
7. Section 13 provides, so far as is relevant, that:
13(1) For the purposes of the social security law, if:
(a) the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b) the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c) the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d) the person lodges a claim for the social security payment within 14 days after the Department is contacted;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
13(2) For the purposes of the social security law, if:
(a) the Department is contacted by or on behalf of a person in relation to a claim for a social security payment, other than crisis payment or special employment advance; and
(b) the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c) the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d) the person lodges a claim for the payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and
(e) the Secretary is satisfied that:
(i) throughout the period starting on the day on which the Department was contacted and ending on the day on which the person lodged the claim, the person was suffering from a medical condition; and
(ii) that medical condition, or circumstances related to that medical condition, had a significant adverse effect on the person’s ability to lodge the claim earlier;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
13(3) For the purposes of the social security law, if:
(a) the Department is contacted by or on behalf of a person (the claimant) in relation to a claim for a social security payment, other than crisis payment or special employment advance; and
(b) the claimant is, on the day on which the Department is contacted, qualified for the social security payment; and
(c) the Secretary gives the claimant a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d) the claimant lodges a claim for the payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and
(e) the Secretary is satisfied that:
(i) throughout the period starting on the day on which the Department was contacted and ending on the day on which the claimant lodged the claim, the claimant was caring for, or was the partner of, another person; and
(ii) throughout that period, the other person suffered from a medical condition; and
(iii) the medical condition, or circumstances related to the medical condition, from which the other person was suffering had a significant adverse effect on the claimant’s ability to lodge the claim earlier;
the claimant is taken to have made a claim for the social security payment on the day on which the Department was contacted.
13(3A) For the purposes of the social security law, if:
(a) the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b) the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c) the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d) the person lodges a claim for the social security payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and
(e) the Secretary is satisfied that, in the special circumstances of the case, it was not reasonably practicable for the person to lodge the claim earlier;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
background
8. There was no dispute between the parties as to the following facts:
·Mr Thomas was granted sickness allowance from 21 February 2008 and transferred to newstart allowance from 15 May 2008.
·Mr Thomas was issued a pension concession card on 25 June 2008 as a newstart recipient with a partial capacity to work as assessed by a Job Capacity Assessor (‘JCA’).
·Mr Thomas lodged a medical certificate on 5 September 2008 and was assessed by a JCA on 15 September 2008, which resulted in a letter being sent to Mr Thomas on 18 September 2008 inviting him to lodge a claim for DSP.
·Mr Thomas rang Centrelink on 23 September 2008 regarding the DSP invitation.
·Mr Thomas contacted Centrelink on 24 October 2008 and a contact regarding intention to claim was logged and a further letter about intention to claim was sent to him.
·Mr Thomas lodged a claim for DSP at Centrelink Nelson Bay on 29 October 2008 supported by a medical report by Dr Jin Choong, his GP, also dated 29 October 2008.
consideration of the evidence
9. I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 (‘the T-documents’), which I took into evidence. I also had before me:
·Job Capacity Assessment Reports of 15 September 2008 and 5 November 2008; and
·A faxed reply from Dr Choong to Centrelink dated 28 July 2009 attaching a medical report by Dr Ferch dated 23 October 2008.
10. Mr Thomas gave evidence from Rankin Park Rehabilitation Hospital where he is recuperating from a stroke.
11. He was adamant that he had lodged a claim for DSP at Nelson Bay Centrelink earlier than that of 29 October 2008. He said that he had been initially assessed at Nelson Bay but because the assessor was on leave before completing her report, he was assessed again at Raymond Terrace. He said that Centrelink had then ‘backdated everything’ and he had a ‘disability card’ from 25 June 2008.
12. He could not recall getting a letter from Centrelink inviting him to apply for DSP.
13. Mr Thomas said that ‘Michelle’ at Nelson Bay Centrelink told him there was only $3 difference between his pension and the DSP and it was then that she recorded him as saying he was not interested in applying at that time as he was having an operation in October. Mr Thomas was perturbed by this having been recorded as he was only going for an MRI and not an ‘operation’. He thought he should let Centrelink know everything and that was why he had told them about the MRI. He said ‘Michelle’ did not give him any form to fill out.
14. Mr Thomas said that his daughter-in-law, Michelle Thomas, had filled out both applications for DSP and had taken him to the Nelson Bay Centrelink office to lodge them: the first one was lodged ‘well before October’, possibly by the end of September; and the second one was lodged on his ex-wife’s birthday.
15. As to Dr Choong saying that he had only completed one treating doctor’s report on 29 October 2008, Mr Thomas said that the doctor had definitely completed 2: one at his Soldier’s Point rooms, and the other at his Nelson Bay rooms. He did not think he was mistaken that the earlier report could have been a medical certificate in connection with newstart allowance.
16. With Mr Thomas’ consent, I spoke with Michelle Thomas, at her place of work. She said she had never assisted Mr Thomas fill out any claim for DSP, nor had she ever taken him to Centrelink at Nelson Bay. It was possible that he ‘got himself’ to Nelson Bay or that her brother-in-law had taken him. All she had completed was a form to say he was living with her.
17. In piecing together Mr Thomas’ dealings with Centrelink, it appears that he was not necessarily well-served.
18. I was informed that there was a job capacity assessment conducted somewhat earlier than the relevant period, and that it was sufficient to exempt Mr Thomas from looking for work while in receipt of newstart allowance. From Dr Choong’s treating doctor’s report, it would appear that Mr Thomas had been having neurological problems since December 2007, which subsequently were diagnosed as diabetes. He also had severe mobility limitations due to his cervical spondylosis and to his spondylolisthesis, which was later diagnosed by Dr Ferch.
19. Centrelink records suggest that he was invited to apply for DSP on 18 September 2008, although Mr Thomas had no recollection of receiving that letter. It appears that the invitation followed the assessment of 15 September 2008 where he was recorded as having little or no work capacity.
20. I accept that it was misreported on 23 September 2008 that he was going for an ‘operation’ and it seems unlikely that Mr Thomas would profess disinterest in applying for DSP when he had been speaking with someone from Centrelink about his benefits at least fortnightly, and often more frequently, according to the Centrelink file notes.
21. He appears to have contacted Centrelink again on 1 October 2008 but there was no further discussion about responding to the invitation to apply for DSP. The advocate for Centrelink conceded that it was unclear if a claim form had ever been sent to Mr Thomas.
22. A further job capacity assessment was conducted, as Mr Thomas had said, on 5 November 2008. That JCA recorded Mr Thomas as meeting the criteria for DSP. I accept, there being no evidence of deterioration between 15 September and 5 November 2008, that Mr Thomas met the criteria at the earlier date also.
23. Mr Thomas, although adamant that he had completed 2 claims for DSP, conceded that his memory is now poor, especially since his stroke. For example, he was clear in his recollection that his daughter-in-law, who he regarded as devoted to him, had assisted him in completing 2 claim forms, but her evidence must lead me to the view that he is mistaken. I therefore do not accept that Mr Thomas in fact lodged an earlier application for DSP than that which Centrelink has on file, namely 29 October 2008.
Are there special circumstances such that it was not reasonably practicable for Mr Thomas to lodge the claim earlier: s 13(3A)?
24. The legislation provides no guidance as to the meaning of the term ‘special circumstances’ as set out in subsection 13(3A) of the Administration Act. In Beadle v Director-General of Social Security (1985) 7 ALD 670, the Full Federal Court stated that it was not possible to lay down precise limits or precise rules for the meaning of the term as it is used in the Act with respect to waiver of debt. The Court indicated that this would depend upon the circumstances of each particular case but commented that, even though the term lacks precision, it was sufficiently understood “not to require judicial gloss” (at 674). There, the Court affirmed the decision of the Tribunal (Re Beadle and Director-General of Social Security (1984) 6 ALD 1) where (at 3) the Tribunal had acknowledged that the term was “incapable of precise or exhaustive definition” and that, to be special, the circumstances “must have a particular quality of unusualness that permits them to be described as special”. See also Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9 per Besanko J at [33].
25. The term ‘reasonably practicable’ is also undefined in the legislation, although it was considered by the High Court in another context in Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304. According to Gaudron J at [53]:
Three general propositions are to be discerned from the decided cases:
·the phrase “reasonably practicable” means something narrower than “physically possible” or “feasible”;
·what is “reasonably practicable” is to be judged on the basis of what was known at the relevant time;
·to determine what is “reasonably practicable” it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.
26. In the JCA report of 5 November 2008, Mr Thomas was described as having very severe symptoms arising from his cervical spondylosis. He had pain radiating to his legs, upper back and arms and sometimes used a cane. He had pins and needles in the right hand and right foot. His ability to care for himself was affected and he moved from Queensland to live at Medowie with his son and daughter-in-law. He was unable to walk longer than 2 supermarket aisles without needing to rest. He had tiredness associated with his diabetes and he required daytime naps.
27. Mr Thomas told me that he had had to rely on his daughter-in-law to take him to Centrelink’s offices because he had no way of getting from Medowie to Nelson Bay. His son (presumably) and his daughter-in-law work, and he is reliant upon her rostered days off to assist him in his medical and other appointments.
28. An examination of the local bus routes around the Medowie and Nelson Bay area, using information obtained from the internet, suggest that Mr Thomas would have to walk about 1km to get from his house in Medowie to the nearest bus stop and then take a 15 minute bus ride to the RAAF Base/Newcastle Airport. There he would then transfer to another local bus service for a 1 hour journey to Nelson Bay. From the bus stop in Nelson Bay Mr Thomas would have to walk another 200m to get to the Centrelink office. The bus timetables show that the buses run only every hour or so on weekdays. Raymond Terrace is marginally closer but public transport is similarly limited.
29. Centrelink contended that Mr Thomas attended the Nelson Bay and Raymond Terrace customer service centres regularly and pointed to the record of his contacts with Centrelink. While there are references to ‘customer [Mr T] contacted’ those offices, it is not clear that those contacts were necessarily made in person.
30. I accept that Mr Thomas was reliant upon his relatives to transport him to Centrelink offices, given that public services in his area were poor, especially having regard to his limited mobility as identified in the JCA report. I also observe that it is unclear if a claim form had ever been sent to Mr Thomas, including when he was first invited to apply for DSP; in those circumstances, lodgement would be even more dependent on physical attendance.
31. I am therefore satisfied that, in the special circumstances of the case, it was not reasonably practicable for Mr Thomas to lodge the claim earlier. He is therefore taken to have made the claim for DSP on the day on which the Department was contacted, which Centrelink conceded, for this purpose, to be 18 September 2008.
32. Having come to that view, it was not necessary for me to consider if subsection 13(2) of the Administration Act might apply, although, more detailed information about Mr Thomas’ medical condition might have led me to that view.
33. As conceded by Centrelink, Mr Thomas would also qualify for the ESS payment as he was receiving DSP in respect of 14 October 2008.
decision
34. The decision under review is set aside.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
Signed: .........................[Sgd]...........................
Associate: Jennifer WongDate of Hearing 2 November 2009
Date of Decision 11 November 2009
Appearance for the Applicant Self-represented
Advocate for the Respondent Ms C Butler, Centrelink Legal Services
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