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

[2018] AATA 485

Woodhall and Secretary, Department of Social Services (Social services second review) [2018] AATA 485 (14 March 2018)

Division:GENERAL DIVISION

File Number:           2017/6074

Re:Andrew Woodhall

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member N A Manetta

Date:14 March 2018

Place:Adelaide

The Tribunal refuses an extension of time within which Mr Woodhall may lodge an application for review.

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Senior Member N A Manetta

CATCHWORDS

PRACTICE AND PROCEEDURE - extension of time - applicant seeking payment of disability support pension to a date earlier than the deemed date of the making of the application - no reasonable prospects of success - application for an extension of time refused.

LEGISLATION

Social Security Act 1991

Social Security (Administration) Act 1999

REASONS FOR DECISION

Senior Member N A Manetta

14 March 2018

1. This is an application by Mr Andrew Woodhall seeking an extension of time within which to lodge an application for a review of a Level 1 decision of this Tribunal concerning the date of commencement of his disability support pension (DSP) granted to him under the Social Security Act 1991 (the Act).  Mr Woodhall seeks a back payment of his pension to a date earlier than 19 January 2011, which is the date this Tribunal decided was the appropriate date on which his pension was to commence.  The application for an extension of time records that Mr Woodhall seeks to have his DSP backdated to the date he first applied for it.  At the initial hearing before me, Mr Forbes, a psychologist, appeared for Mr Woodhall by telephone; Mr Morris appeared for the Respondent. 

2. It was agreed at the initial hearing that Mr Woodhall would lodge a written submission in response to the Secretary’s written outline of submissions, and if necessary, the matter would be called back on by me for further oral argument.  Mr Forbes indicated at the initial hearing that it might prove difficult to secure Mr Woodhall’s meaningful participation in the proceedings given his disability, but that it was important from Mr Woodhall’s perspective that there be “closure” one way or the other in respect of the issue of the start date for his DSP.

3. In the event, no written submission was lodged.  Mr Forbes advised Mr Morris by email that Mr Woodhall had provided him with no instructions or direction in the matter and he indicated further that he believed the Tribunal had no option but to decide the matter on the papers.  That email was forwarded to the Registry by Mr Morris.

4. In the circumstances, there appears to be no alternative but to decide the matter on the papers. 

5. I infer the following facts from the papers.  In summary, Mr Woodhall first lodged a claim for a DSP on 13 September 2010.  That claim was rejected on 29 September 2010.  The circumstances of the rejection are not explained in the papers.  There was no application by Mr Woodhall for a review of that decision so far as I can see. 

6. Mr Woodhall then contacted Centrelink in December 2010 in relation to a DSP.[1]  On 19 January 2011, Mr Woodhall again contacted Centrelink about a DSP.

   [1] That was the finding of the Authorised Review Officer and I shall assume that is correct.

7. A further written application for a DSP was filed on 13 May 2011, just over 17 weeks after the contact on 19 January 2011.  The claim was granted on 8 June 2011.  Mr Woodhall’s pension was made payable from 19 January 2011 by the assessing officer.

8. In October 2016, some five years later, Mr Woodhall sought a review of the decision to pay his DSP from 19 January 2011 only, and not from any earlier date.  The Authorised Review Officer decided payment of the DSP should have been backdated to 9 March 2011 only.  On Mr Woodhall’s further application for review, the AAT1 decided on 24 April 2017 that the appropriate start date for the pension was 19 January 2011, which had the effect of reinstating the assessing officer’s determination made in June 2011.  The date of 19 January 2011 was judged by the Tribunal to be the date on which Mr Woodhall had lodged an application “either for a DSP or for another income support payment”.  Given the terms of this finding, it would appear the Tribunal did not have any written social security application before it.  I accept Mr Morris’s submission that the Tribunal appears to have made a factual error, but it is one in Mr Woodhall’s favour.

9. The correct approach to the assessment of the application for a DSP made by Mr Woodhall in May 2011 is as follows. Section 11 of the Social Security (Administration) Act 1999 (the Administration Act) requires an application for a social security benefit to be made by a person who wants to be granted one. Broadly speaking, s 16 of the Administration Act deems the date of a person’s application to be the date on which a written claim form is received by Centrelink.

10. Section 13 of the Administration Act does allow the date of the making of an application for a DSP, amongst other benefits, to be “backdated” to a date of initial verbal contact with Centrelink, but in defined circumstances only. Relevantly (that is, under s 13, sub s (2),(3) and (4)) the date of lodgement of an application may be backdated to a date on which a person had earlier contact with Centrelink provided the contact occurred no earlier than 13 weeks before the lodging of the written application. Other conditions need to be satisfied as well. These sub-sections cannot apply to Mr Woodhall as his contact in January 2011 was some 17 weeks earlier than the date of his May 2011 application.

11. Section 12 of the Administration Act also allows for the backdating of an application date, but the maximum backdating that can occur is a period of 13 weeks before the date on which the claim was allowed (in this case, 8 June 2011). This backdating would see Mr Woodhall’s application deemed to have been lodged on 9 March 2011. That is, of course, later than 19 January 2011.

12. I accept that the start date for Mr Woodhall’s DSP (as set out in Sch 2 of the Administration Act) is no earlier than the deemed date of his application (in this case, 9 March 2011). It appears Mr Woodhall has had an error made in his favour since the proper start date of his pension has been assessed to be 19 January 2011; but that is not something I need address in this hearing for an extension of time.

13. Mr Morris’s principal submission to me was that unless there is an arguable case on the merits for a backdating of the DSP to a date earlier than 19 January 2011, Mr Woodhall’s application for an extension of time within which to have the Level 1 decision of this Tribunal reviewed should be refused.  I agree that the Tribunal should not grant an extension of time to allow an application for review to proceed if it has no prospects of success.  I cannot see how Mr Woodhall’s DSP successful application in May could be backdated to a date earlier than 19 January 2011 nor do I see how the payment of the DSP could be backdated to commence earlier than 19 January 2011.  In the circumstances, therefore, I do not see that the proposed application for review has any prospects of success.  I would, therefore, refuse an extension of time.

14. An earlier start date for Mr Woodhall’s DSP could only have come about had Mr Woodhall sought a review of the September 2010 decision to refuse him a DSP.  A process of review in respect of that decision was not invoked at the time or subsequently.  I would add that as I have no information before me in relation to the September 2010 decision, I cannot conclude that it was necessarily wrong.

    DECISION

15. The Tribunal refuses an extension of time within which Mr Woodhall may lodge an application for review.

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta

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Administrative Assistant

Dated: 14 March 2018

Date(s) of hearing:	29 November 2017
Advocate for the Applicant:	Mr S Forbes
Advocate for the Respondent:	Mr O Morris
Solicitors for the Respondent:	Department of Human Services