Wise and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 437

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 437

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N° 2007/4569

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		LEANNE MICHELLE WISE

Applicant

And

SECRETARY,

DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr C. Ermert, Member

Date27 May 2008

PlaceMelbourne

Decision The decision under review is affirmed.

(sgd) Conrad Ermert

Member

SOCIAL SECURITY – parenting payment (partnered) – start day – whether start day can be backdated – medical condition – decision affirmed.

Social Security Administration Act 1999 ss 13(1), 13(2), 41, 42 and Schedule 2

REASONS FOR DECISION

27 May 2008  Mr C. Ermert, Member

INTRODUCTION

1.      On 31 August 2006 Leanne Wise contacted Centrelink to enquire about her eligibility for support payments in respect of her parenting responsibilities.  Centrelink is the agency which provides services on behalf of the Department of Education, Employment and Workplace Relations.  Centrelink sent a letter to Mrs Wise on the same day confirming her contact and advising her that a completed claim needed to be lodged on or before 14 September 2006.  Mrs Wise met with Centrelink officers on two subsequent occasions to clarify the documentation required and submitted the claim for parenting payment (partnered) on 28 September 2006.  Centrelink made a decision to commence the payments from 31 August 2006.

2.      Mrs Wise considers that the parenting payment should be paid from the date she first qualified for the payment, namely the date of birth of her third child, 13 July 2005.  Her reasoning is that she suffered from depression which affected her ability to understand whether she had submitted the appropriate claim form. 

3.      Mrs Wise requested a review of the decision to commence the payments on 31 August 2006 and not before.  The decision was reviewed and affirmed by an Authorised Review Officer of Centrelink and the Social Security Appeals Tribunal (SSAT) in turn.  This matter is an application for a review of the SSAT decision.

THE HEARING

4. At the hearing Mrs Wise represented herself and participated via a telephone link. The respondent was represented by Ms Kayren Paul, a Centrelink advocate. I had before me the documents lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents) and a letter form Chris Meehan, a counsellor, was taken in as Exhibit A1.

THE ISSUE

5.      The issue in this matter is the determination of the earliest date from which Mrs Wise can be paid parenting payment (partnered).

LEGISLATION

6.      The provisions which govern the start date of social security benefits are contained in the Social Security (Administration) Act 1999 (the Act). Section 41 of the Act states that a social security payment becomes payable to a person on the person’s start day. Section 42 of the Act states that a person’s start day is the day determined in accordance with Schedule 2. Clause 3(1) of Schedule 2 of the Act states that, if a person makes a claim and is qualified for the payment on the day on which the claim is made, the start day is the day on which the claim is made. 

7. The provisions for the backdating of payments are contained in section 13 of the Act. Section 13(1) relevantly provides that if a person has contacted the Department and lodges a claim within 14 days of the contact then the person is taken to have made a claim on the day on which the Department was contacted.

8. Section 13(2) of the Act states that a claim can be lodged more than 14 days but less than 13 weeks after contacting the Department and still be backdated to the day the Department was contacted if:

(2)(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; 

EVIDENCE AND SUBMISSIONS

9.      In her oral evidence Mrs Wise said that, while in hospital after the birth of her son, she was given a bundle of Centrelink documents to complete and return.  She stated that she filled out the forms and submitted them within the required time frame but cannot remember specifically if a claim for parenting payment (partnered) was included in those forms.  Mrs Wise stated that shortly after the birth she suffered post-natal depression which had an effect on her memory.  She said she was treated for the depression with counselling. She submitted a letter from Mr C Meehan, counsellor (Exhibit A1).  In his letter Mr Meehan relevantly states:

Leanne was a client of mine who attended several counselling sessions … from December 2005 to July 2006.

During that period of time I was able to identify a cluster of symptoms pertaining to depression including mood fluctuations, negativity, sadness, lack of motivation, affect on memory, irritability and indecisiveness…

10.     Mrs Wise submitted that after the birth of her son her state of mind was affected by the depression such that she was not able to understand whether all the required claim forms had been received and submitted.  She contended that had she realised that there was a benefit available that had not been claimed she would have applied for it; and the fact that she completed all the other claim forms on time should be taken as evidence of her intention to submit all applicable claims.  Mrs Wise said that at the time of the birth she and her husband had very little income, as evidenced by the 2005/2006 Tax Return for Mr Wise submitted to the SSAT which showed an income of only $8,000.  She stated that they needed all the income that was available.

11.     In summary, Mrs Wise said that her depression prevented her from understanding that a claim for parenting payment (partnered) had not been submitted and affected her ability to make a claim, and that this should be taken into account in determining the start date to be applied to her payments. 

12. Ms Paul referred to the Statement of Facts and Contentions lodged on behalf of the Secretary. She stated that Mrs Wise first contacted Centrelink in relation to her entitlements on 31 August 2006. She lodged a claim form on 28 September 2006. Although this was outside the 14 days Ms Paul conceded that Mrs Wise was suffering a medical condition at the time which had a significant adverse effect on her ability to lodge the claim. Ms Paul said that the medical condition met the requirements of section 13(2) of the Act and that Mrs Wise was therefore deemed to have made the claim on 31 August 2006. Ms Paul contended therefore that the start date for the parenting payment (partnered) was correctly determined as 31 August 2006.

CONSIDERATION

13. There was no disagreement between the parties over the basic facts of the case. Mrs Wise had a son born on 13 July 2005; the first recorded contact with Centrelink in regard to parenting payment (partnered) was made on 31 August 2006; and the written claim form was submitted on 28 September 2006. There was also no disagreement that Mrs Wise would have been qualified for parenting payment (partnered) from the date of her son’s birth. I note the concession of the respondent that the medical condition of Mrs Wise meets the requirements of section 13(2)(e) of the Act, which allows her claim to be taken to have been made on 31 August 2006. The only issue is whether there is any provision in the Act that provides for the start of payments at a date earlier than 31 August 2006, taking into account the effect of Mrs Wise’s medical condition over the period of time.

14. Unfortunately for Mrs Wise, the only provisions in the Act that provide for the backdating of her payments are those contained in section 13(2). The application of those provisions only allows the payments to be backdated to 31 August 2006. There are no other provisions in the Act that permit the backdating of her benefits before 31 August 2006. Accordingly, I must find that the decision to pay Mrs Wise parenting payment (partnered) from 31 August 2006 is correct and the decision under review is affirmed.

DECISION

15.The Tribunal affirms the decision under review.

I certify that the fifteen [15] preceding paragraphs are a true copy of the reasons for the decision herein of:

Mr C. Ermert, Member

(sgd)             Dianne Eva
  Clerk

Date of Hearing:  20 March 2008

Date of Decision:  27 May 2008

Advocate for the applicant:                 Mrs Leanne Wise, self represented

Advocate for the respondent:             Ms Kayren Paul, Centrelink Legal Services