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

[2022] AATA 3179

Windsor and Secretary, Department of Social Services (Social services second review) [2022] AATA 3179 (30 September 2022)

Division:GENERAL DIVISION

File Number(s):      2021/5667

Re:Mr John Windsor

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Senior Member B Cullen

Date:30 September 2022

Place:Brisbane

The decision under review is affirmed.

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

Senior Member B Cullen

Catchwords

SOCIAL SECURITY – claim for Disability Support Pension payments to be backdated from date of first application lodged with Centrelink – date of claim outside of claim period (more than 14 days, but not more than 13 weeks) in accordance with subsection 13(3A) of the Social Security (Administration) Act 1999 (Cth) – decision under review affirmed.

Legislation

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

Secondary Materials

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Senior Member B Cullen

30 September 2022

Nature of the review

1. The Applicant seeks review of a decision of the Social Services and Child Support Division of the Tribunal (‘AAT1’), dated 26 July 2021.

2. The AAT1 decision set aside a decision made by Centrelink, wherein the Applicant had been granted access to the Disability Support Pension (‘DSP’), from 2 March 2021[1] - the date on which the Applicant lodged his second claim for DSP.[2] The AAT1 substituted a decision that the Applicant should be paid the DSP from 13 January 2021, as he is a vulnerable claimant who should be paid from the date that he first contacted Centrelink in relation to his application.

   [1]     The Tribunal notes that the Applicant’s date of claim is stated as ‘1 March 2021’, in accordance with Exhibit 1, T Documents, T18, ‘Disability Support Pension - Online Claim Medical Question Set’ dated 1 March 2021, at page 130. In accordance with the AAT1 decision, found at Exhibit 1, T Documents, T2, ‘Decision of the Social Services & Child Support Division’ dated 26 July 2021, at page 5, the Tribunal refers to the date claim as 2 March 2021.

   [2]    

3. In the review now before this Tribunal, the Applicant contends that that the AAT1 should have substituted a decision that he be paid the DSP from 3 November 2021 instead of

   
   

   13 January 2021. The Applicant says that 3 November 2021 is the appropriate date, as this is the date on which he first applied, albeit unsuccessfully, for the DSP.

4. The Tribunal has set out the relevant dates and events in the table following.

Date	Event
3 November 2020	Applicant submits a claim for the DSP – confirming medical conditions of “epilepsy and mental health”.[3]
13 and 14 January 2021	Applicant contacts Centrelink, requesting an update on his claim.[4]
15 January 2021	The Applicant’s claim for DSP is rejected by Services Australia, which found he did not have “an impairment rating of 20 points or more,” and advising the Applicant that he can seek review within 13 weeks of being notified.[5]
15 January 2021	The Applicant requests an internal review of Services Australia’s decision.
29 January 2021	The Authorised Review Officer (‘ARO’) affirms the decision of Services Australia. Importantly, the letter advising the Applicant of the affirmed decision indicates that “…If your request for a review is more than 13 weeks after being notified and the decision can be changed, you may only receive your entitlement from the date you requested the review”. (Tribunal’s emphasis)[6]
2 March 2021	The Applicant lodges a further claim for DSP, confirming his medical condition as “schizotypal personality disorder”.[7] Centrelink utilises the Applicant’s Consent to Disclose Medical Information Form to obtain a report from Dr Laurel Morris, the Applicant’s treating psychologist.[8]
10 May 2021	The Applicant is granted DSP from 2 March 2021.[9]
11 May 2021	The Applicant seeks review of the start date of his DSP, asking that it commence from 3 November 2020 (the date of his first claim for DSP).
14 May 2021	The ARO varies the decision, as the Applicant is considered to be a “vulnerable claimant” who could be paid from the date of contact. There is a file note, which indicates that the Applicant made contact on 1 February 2021; and the ARO was satisfied that the Applicant was medically qualified for the DSP as at 1 February 2021. Importantly, the ARO notes that as the decision made in relation to the Applicant’s 3 November 2020 claim had been reviewed by another ARO already, there was no jurisdiction to review it again.[10]
8 June 2021	The Applicant lodges an application for review of 3 November 2020 decision in the AAT1.[11]
26 July 2021	The AAT1 set aside the ARO’s decision, and in substitution decided that the Applicant should be paid the DSP from 13 January 2021. There was evidence before the AAT1 that the Applicant had contacted Centrelink on 13 January 2021, was medically qualified as at 13 January 2021; and lodged a claim “…more than 14 days and less than 13 weeks later…”; and there were special circumstances that prevented the Applicant from filing earlier.[12]
16 August 2021	The Applicant lodges an application for a second review, that is now before the Tribunal.[13]
19 July 2022	The Tribunal scheduled a hearing, but it was adjourned due to technical issues with Microsoft Teams.
15 August 2022	The Tribunal held a hearing, which the Applicant attended by telephone. The Respondent appeared in person.

[3]     Ibid, T8, ‘Disability Support Pension - Online Claim Medical Question Set’ dated 3 November 2020, pages 79-80.

[4]     Exhibit 1, T Documents,T25, ‘Document List (DL) and selected customer contact notes for the period 24.04.19 to 28.05.21’ pages 192-194.

[5]     Ibid, T13, ‘Correspondence from Centrelink: Rejection of your claim for Disability Support Pension’ dated

[6]     Exhibit 1, T Documents, T14, ‘Decision of Authorised Review Officer’ dated 29 January 2021, page 95.

[7]     Ibid, n1, page 130.

[8]     Exhibit 1, T Documents, T22, ‘Application for Review of Decision (Social Services & Child Support Division)’ dated 8 June 2021, page 145.

[9]     Ibid, T26, ‘Correspondence from Centrelink for the period 14.01.21 to 18.06.21’, page 251.

[10]    Exhibit 1, T Documents, T21, ‘Decision and notes of Authorised Review Officer’ dated 14 May 2021, page 140.

[11]    Ibid, n7, pages 144 – 149.

[12]    Exhibit 1, T Documents, T2, ‘Decision of the Social Services & Child Support Division’ dated 26 July 2021, page 9.

[13]    Ibid, T1, ‘Application for Review’ dated 16 August 2021, pages 1 – 4.

Issues for determination

1. In this matter, the Tribunal must determine whether:

   1.The Applicant was medically qualified to access the DSP; and

   2.If the Applicant is medically qualified, what date the Applicant should be paid the DSP from.

   The Applicant is medically qualified for the DSP

2. The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the ‘Act’), the Social Security (Administration) Act 1999 (Cth) (the ‘Administration Act’), and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (‘the Determination’).

3. Section 94(1) of the Act requires that the Applicant meet several requirements to qualify for DSP (‘Section 94 Requirements’):

   ·The Applicant must have a physical, intellectual, or psychiatric impairment.

   ·The impairment is considered permanent.

   ·The Applicant’s impairment/s must be of 20 points or more under the Impairment Tables contained within the Determination.[14]

   ·The Applicant must have a continuing inability to work.

   [14]    A legislative instrument made under the Act: see s 26(1).

4. The date for determining whether the Applicant meets the Section 94 Requirements is the date of his claim, unless the Applicant becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[15]

   [15]    See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).

5. Here, it is very clear that the Applicant met the s.94 criteria as at the date of his first claim for the DSP, on 3 November 2020. The Applicant is a 45-year-old man, who has had significant medical and psychological challenges throughout his life.[16] In the Secretary’s Statement of Facts, Issues and Contentions, it is conceded that the Applicant “..had a psychiatric impairment, and the impairment was 20 points under Table 5 and that he has a continuing inability to work.”[17]

   [16]    Exhibit 1, T Documents, T11, ‘Medical Report: Dr Laurel Morris’ dated 19 November 2020, pages 85-87.

   [17]    Exhibit 2, ‘Respondent’s Statement of Facts, Issues and Contentions’ dated 3 May 2022’, (‘SFIC’), page 4, at [20].

6. The Tribunal accepts that the evidence of the Applicant’s treating psychiatrist,

   
   

   Dr Laurel Morris[18], supports a finding that he met the s.94 requirements as at

   
   

   3 November 2020.

   [18]    Exhibit 1, T Documents, T11, ‘Medical Report: Dr Laurel Morris’ dated 19 November 2020, pages 85-86.

   From what date should the DSP be paid to the Applicant?

7. The Applicant wants to be paid the DSP from the date on which he first applied for the DSP – that is 3 November 2020.

8. The Secretary argues that s.147 of the Administration Act places limits on the date that the Applicant can be paid from.

9. Section 147 of the Administration Act provides that where a person seeks review by the Tribunal of an ARO’s decision, and where the person requests that review more than 13 weeks after the ARO’s decision was made, any favourable outcome from the Tribunal review can only take effect from the date on which the person sought Tribunal review. This section has some importance in the Applicant’s circumstances.

10. It was not until 8 June 2021 that the Applicant sought review of the ARO’s decision in relation to his 3 November 2020 claim for the DSP.

11. Calculating the timeframe between the ARO’s 29 January 2021 decision and the Applicant’s 8 June 2021 application for review before the Tribunal, leads to a timeframe of 18 weeks and 4 days.

12. As 18 weeks and 4 days is “more than 13 weeks after the ARO’s decision was made”, s.147 limits any favourable outcome to a commencement date of 8 June 2021.[19]

    [19]    Exhibit 1, T Documents, T2, ‘Decision of the Social Services & Child Support Division’ dated 26 July 2021 (AAT1), page 8, at [15].

13. The Tribunal understands that the Social Security legislation is complex for applicants, and that navigating the system is a challenge for applicants – particularly those with significant mental health challenges. However, the role of the Tribunal is to apply the legislation as it is set by the Government, and the Tribunal simply does not have the power to make exceptions to it.

14. The Tribunal must also consider the impact of s.13 of the Administration Act on the Applicant’s claim.

15. Subsection 13(3A) provides as follows:

    ‘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

    (aa)  the person is, on the day on which the Department is contacted, included in a class of persons determined in an instrument under section 14A; and

    (b)  the person is, on the day on which the Department is contacted, qualified for the social security payment; 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.’ (Tribunal’s Emphasis).

16. The Secretary accepts that the Applicant is a vulnerable person, who has experienced periods of homelessness due to his medical condition, and that he fits within the class of persons to whom Section 5 of the Determination applies, permitting the Applicant’s claim to be deemed to have been made on an earlier date when he contacted Centrelink, rather than on 2 March 2021 when he actually lodged the second claim for DSP.[20]

    [20]    Exhibit 2, ‘Respondent’s Statement of Facts, Issues and Contentions’ dated 3 May 2022’, (‘SFIC’), pages 5-6, at [25] – [32].

17. The Tribunal agrees that the Applicant is a vulnerable claimant, given his significant mental health challenges and housing difficulties. The question then becomes – what is the earliest day on which the Applicant contacted Centrelink in relation to the 2 March 2021 claim for DSP?

18. The Tribunal is mindful to take a beneficial approach, looking at the most favourable outcome possible for the Applicant on the evidence before it, and which can be supported by the law.

19. The evidence before the Tribunal establishes that, in the 13 weeks prior to the Applicant’s 2 March 2021 claim, the Applicant first contacted Centrelink on 13 January 2021. There is a file note before the Tribunal indicating that the Applicant contacted Centrelink seeking an update on 13 January 2021.[21]

    [21]    Exhibit 1, T Documents,T25, ‘Document List (DL) and selected customer contact notes for the period 24.04.19 to 28.05.21’ pages 192-193.

20. Although the Tribunal understands that the Applicant submitted his first DSP claim on

    
    

    3 November 2020, this date falls outside the 13 weeks prior to the Applicant’s
    2 March 2021 claim. As such, the Tribunal cannot make the decision that the Applicant seeks in relation to the date he should be paid the DSP from.

    Other matters

21. The Applicant raised concerns before the Tribunal that he had been “…discriminated against…”[22] by Centrelink. During the hearing, the Tribunal endeavoured to explain to the Applicant that it did not have any jurisdiction to make a decision about whether he had been discriminated against.[23]

    [22]    Transcript of 15 August 2022, page 2, line 38.

    [23]    Transcript of 15 August 2022, page 2, lines 40-45.

22. The Applicant has experienced challenges in relation to his engagement with Centrelink. The Applicant says that as he was banned from attending Centrelink, that it was not possible for him to submit his claim for DSP earlier. The Tribunal is not able to consider the validity of the Applicant’s concerns about having been banned.

23. The Tribunal finds that the earliest date the Applicant can be paid the DSP from is

    
    

    13 January 2021.

    Decision

24. The decision under review is affirmed.

I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member B Cullen

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

Associate

Dated: 30 September 2022

Dates of hearing:	19 July 2022 & 15 August 2022
Date final submissions received:	3 May 2022
Applicant:	In person via telephone
Solicitors for the Respondent:	Ms Jasmine Forsyth (Mills Oakley Lawyers)

Exhibit 1, T Documents, T18, ‘Disability Support Pension – Online Claim Medical Question Set’ dated

1 March 2021, pages 130-131.

15 January 2021, pages 90-91.