YHTW and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 399

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 399

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3484

GENERAL ADMINISTRATIVE DIVISION		)
Re		YHTW

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr KS Levy RFD, Senior Member

Date15 May 2008  

PlaceBrisbane

Decision The decision under review is affirmed.

..................[Sgd]............................

SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits and Allowances – disability support pension – chronic fatigue syndrome – definition of ‘start date’ to determine entitlement – decision under review affirmed.

Social Security (Administration) Act 1999 ss 11, 13, 41, 42

REASONS FOR DECISION

15 May 2008 Dr KS Levy RFD, Senior Member  

INTRODUCTION

1.      The applicant in this case ceased work in February 2003 due to chronic fatigue syndrome.  Following the provision of other financial support while on leave from the applicant’s employer, the applicant telephoned Centrelink on 17 May 2005.  She claimed that she should be entitled to Disability Support Pension from 1 April 2005 but was denied that pension.  She appealed this matter to the Social Security Appeals Tribunal (SSAT) who rejected the appeal on 27 May 2007.  She now appeals that decision to this Tribunal. 

ISSUE

2.      The question for the Tribunal is – what is the “start date” for which the applicant is entitled to Disability Support Pension under the relevant legislation ?.

EVIDENCE

3. The applicant provided evidence by telephone. She maintained that the decision by the SSAT failed to take account of a provision of s 11(2) of Schedule 2 of the Social Security Act 1991 (the Act) as her medical condition was the sole reason for her delay in applying to Centrelink for Disability Support Pension.  She also maintained that her condition changed in the period 2003 to 2005 as evidenced by the detailed report by Dr Whiting.

4.      She applied in 2003 for sickness allowance which was rejected.  At that time she was receiving income protection payments from QSuper (while on leave from her employer) and these payments continued from prior to that time until 1 April 2005.  QSuper informed the applicant on 24 January 2005 that her income protection payments could not continue beyond 1 April 2005.

5.      Relevantly, the applicant took no further action until 17 May 2005 when she telephoned Centrelink and enquired about her entitlements to social security payments.  Following advice received, she submitted a claim for sickness allowance as well as for Disability Support Pension.  The written application was dated 27 May 2005.  As a result, sickness allowance was payable from 6 May 2005 to 16 May 2005.  Disability Support Pension was payable from 17 May 2005 and thereafter. 

6.      At the commencement of the hearing, the applicant was appealing against her request for payment for the period 1 April 2005 to 16 May 2005.  During the hearing, however, she conceded  that she could not be entitled to Disability Support Pension for all that period but maintained that she was so entitled to a payment for a period of four weeks prior to initial date of contact, that is four weeks prior to 17 May 2005. 

7.      The applicant provided extensive evidence through reports which she had from Dr Whiting (a specialist in Internal medicine and Infectious Diseases), an Occupational Therapist, and a Neuropsychologist.  Those reports indicate that she suffers from an impairment where she cannot work, that she has little stamina and cannot stand or sit for long periods of time.  She spoke also of having balance problems and that she could only walk five to ten minutes on a good day, after which she would be exhausted.  She explained also she had severe difficulties with concentration and that her memory was impaired.  The reports to which she referred, were apparently a report of Dr Whiting of 1 February 2006, and more recent reports by an Occupational Therapist (24 October 2007) and from a Neuropsychologist (22 June 2007). 

8.      At the conclusion of the hearing, the matter was adjourned so that YHTW could provide copies of reports to which she referred in evidence and which she said supported her submissions.  These were:

·     A report by Dr Whiting of 1 February 2006

·     An Occupational Therapist report of 24 October 2006 by Helen Calder

·     A Neuropsychologist report of 22 June 2007 by Donna Spooner

These were finally supplied on 30 April 2007.  They were supplied to the Respondent but no further submissions were received.

9.      The report by Dr Whiting of 1 February 2006 was emphatically supportive of the applicant.  She is approximately 42 years of age and is a single woman who lived with her mother until her death.  Dr Whiting’s report compares the applicant’s treatment under Dr Hadley prior to Dr Whiting’s management of her.  I note his description of the grades of illness and his assessment of the applicant.  I note and acknowledge the critical nature of the place of stressors in the life of a person such as the applicant.

10.     The report of October 2007 by the Occupational Therapist is disturbing.  The report and photographs reveal a state of personal disorganisation and highlights the unhygienic and chaotic nature of the applicant’s household.  She clearly acts only when some degree of immediacy is required. She also explained her preference for dealing with some administrative matters in a particular way, and using one of the applicant’s examples, she would prefer to go to the post office to pay a bill rather than paying bills over the telephone, as she finds the latter more exhausting.

11.     Significantly, the report by the Neuropsychologist in June 2007 measures her intellectual functioning, including attention and concentration, memory for verbal and visual stimuli and executive functions (decision making and action responses).  The report shows intellectual processing and memory were below expectation when tasks were more complex, but that it was within normal limits when tasks were less complex or when prompts were provided.  There were only “mild” executive difficulties (cognitive flexibility, planning and concrete problem solving.  The report concluded, “Overall, I hope that you are reassured by these results which seem to suggest that, with sufficient determination and incentive, you have the ability to perform quite well on even effortful and lengthy tasks”[1].

[1] Report of Ms Donna Spooner, Neuropsychologist, dated 22 June 2007.

CONSIDERATION

12.     The evidence presented was considerable and the applicant seemed very convincing and competent in providing a range of evidence about her condition.  It is acknowledged that her evidence was undoubtedly based on reports written by professionals but her stamina, concentration and memory were not obviously impaired during the hearing, which continued for over one and a half hours.  The Tribunal nevertheless sought the additional reports to which the applicant referred so that the applicant’s condition could be considered comprehensively in context. 

13.     I make the following findings of fact:

(a)The applicant ceased work in February 2003.

(b)The applicant received income protection payments from QSuper from February 2003 and until 1 April 2005.

(c)The applicant’s condition had commenced in the late 1990’s and by 2003 she had been unable to work. 

(d)On 17 May 2005 the applicant contacted Centrelink and sought information about applying for social security benefits.

(e)The applicant submitted a written application for both Sickness Allowance as well as Disability Support Pension on 27 May 2005.

(f)Following initial rejection of that application, the applicant was paid Sickness Allowance from 6 May 2005 to 16 May 2005.  Disability Support Pension was then paid on and from 17 May 2005.

(g)The medical and psychological factors, do not alone, result in an incapacity which would have prevented the applicant from making an application earlier for pension entitlements.

14. The issue in this matter is a legal question to be determined under provisions of the Social Security (Administration) Act 1999 (the Act). The relevant provisions of the Act are as follows:

“Division 3—Commencement of social security payment

s41 Commencement

(1)  Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person’s start day in relation to the social security payment.

(2)  Unless another provision of the social security law provides otherwise, a concession card takes effect on the person’s start day in relation to the card.

s42 Start day

For the purposes of the social security law, a person’s start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2.

s11 (1) Part 3—Provision of benefits
Division 1—Claim for social security payment or concession card
Subdivision A—Need for claim
General rule
(1)  Subject to subsection (2) and Subdivision B, a person who wants to be granted:
       (a)  a social security payment; or
        (b)  a concession card;
must make a claim for the payment or card in accordance with this Division.
….

s13 (1) Deemed claim—person contacting Department about a claim for a social security payment

(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.

Schedule 2

s3  Start day—general rule

(1)  If:

(a)  a person makes a claim for a social security payment; and

(b)  the person is qualified for the payment on the day on which the claim is made;

the person’s start day in relation to the payment is the day on which the claim is made.
….

s11  Incapacitated claimant
             (1)  If:

(a)  a person becomes incapacitated for work as a result of a medical condition; and

(b)  the person makes a claim for a benefit or pension within 5 weeks after the day on which the incapacity begins; and

(c)  the person continues to suffer the medical condition from the day on which the incapacity begins until the claim is made;

the person’s start day in relation to the benefit or pension is the first day on which the person was qualified for the benefit or pension in the period starting on the day on which the incapacity began and ending on the day on which the claim was made.

(2)  If:

(a)  a person becomes incapacitated for work as a result of a medical condition; and
(b)  the person makes a claim for a benefit or pension more than 5 weeks after the day on which the incapacity begins; and

(c)  the Secretary is satisfied that:

(i)  the person has continued to suffer the medical condition from the day on which the incapacity began until the claim was made; and

(ii)  the medical condition was the sole or principal cause of the person’s failure to make the claim within 5 weeks after the day on which the incapacity began;

the person’s start day in relation to the pension or benefit is the first day on which the person was qualified for the benefit or pension in the period of 4 weeks ending immediately before the day on which the claim was made.”

15.     The above provisions provide that, to be entitled to a social security payment, an applicant must first make a claim[2].  Next in logical sequence, is to determine when any approved payment should commence.  The Act provides that any such payment will commence on the “start day”[3]. The start day is determined with reference to the description set out in Schedule 2[4]. Schedule 2 provides that the start day as a general rule will be the day upon which the claim is made[5].  There are some exceptions to this general rule.  The first is that a person may be “deemed” to have made a claim on an earlier day than the formal application if the person has firstly, contacted the department on a particular day on which the person is qualified for a social security payment; secondly, where the Secretary has given a written acknowledgement of that contact; and thirdly, where the person lodges a claim for a social security payment within fourteen days after the Department is contacted.  In that case, the person will be “deemed” to have made the claim on the earlier date on which the first contact was made in relation to that claim[6].  The applicant in this case has complied with the provisions of s 13. 

[2] S11 (1) of the Act.

[3] S41(1).

[4] S42 of the Act.

[5] S3(1) of Schedule 2.

[6] S13(1) of the Act.

16.     A further exemption exists where an applicant is incapacitated for work due to a medical condition and also makes a claim for a social security benefit more than five weeks after the day on which the incapacity begins.  In that case, if the Secretary is satisfied that the person continues to suffer this medical condition for the period from the commencement of incapacity until the date the claim was made and that the medical condition was the sole or principal cause of the person’s failure to make the claim within five weeks after the date of the commencement of the incapacity, then the “start day” of the benefit may be the first day of the period which commences four weeks prior to the day on which the claim was made. 

17. As found above, the applicant appears to satisfy s 13. That is, the applicant’s start day under s 13 would be 17 May 2005, the date of the initial contact with the department in relation to the application which is dated 27 May 2005. The applicant, however, claims that the provisions of s 11(2) of Schedule 2 apply in her case and that she should be entitled to the benefit commencing in the period four weeks immediately before the date the claim was made.

18. In relation to this latter contention raised by the applicant, I find that the applicant cannot succeed in her claim. The reason she cannot succeed is that she does not satisfy s 11(2)(c)(ii) of Schedule 2. That is, I am not satisfied that the medical condition was the sole or principal cause of her failure to make the claim within five weeks after the day on which the incapacity began. There are a number of reasons for this. Put in context, at the time the incapacity began, she was receiving income protection payments from QSuper and was therefore employed. At that time, she was not entitled to Disability Support Pension. She had certainly made a claim for Sickness Allowance subsequently but it was rejected. That decision is not under review by the Tribunal. The applicant was advised by QSuper by letter dated 24 January 2005 that she would cease to get income protection payments after 1 April 2005. However, it took from 24 January 2005 (or within a short period of time after that date when the letter may have been received), until 17 May 2005 when the applicant finally made contact.

19.     In relation to the strength of the medical evidence, I accept Dr Whiting’s evidence that there would be difficulties for a person such as the applicant to be well enough to make application on any particular day of the week. 

20.     I note Dr Whiting’s suggestion that she should be eligible for Disability Support Pension, which she has been granted.  But that eligibility is a legal question, as is the question as to the commencement of that entitlement.  In addition to Dr Whiting’s evidence, I have also taken account of the Occupational Therapist’s report on her living arrangements which are cause for concern.  But the question is whether the applicant could have made application at an earlier time or whether the delay of more than five weeks was caused solely or principally by her medical condition of Chronic Fatigue Syndrome.  The medical evidence is a guide to answering this and Dr Whiting notes that individuals with this condition may be able to deal “on their ‘off day’”, where circumstances in the person’s life “…. are such that some essential matter needs to be addressed sooner rather than later”.  In addition, the Neuropsychologist’s report of tests of intellectual functioning are informative and even in 2007 (two years after the report in question here), it does not reveal a level of disability which indicates an inability to make a decision or to perceive that some degree of immediacy was evident in dealing with her application for Disability Support Pension.

21.     I note the SSAT decision indicates that the applicant stated there that she had done nothing following advice from QSuper and that she did not apply for social security payments but said that “….she would deal with it when it came up”.  A number of other responses at the SSAT hearing were consistent with some of the symptoms described by Dr Whiting as relating to chronic fatigue syndrome.   Some of the applicant’s responses at that early hearing appeared to be also related to an element of lack of personal organisation.  That would also be consistent with Dr Whiting’s description of the symptoms.  However, during the evidence provided at this hearing, the applicant seemed quite competent in describing her disability without any apparent indicia of fatigue, memory or concentration difficulties over a period of well over an hour. 

22. The evidence which the applicant gave to the SSAT was that she merely decided to put off making application until the time came. There is then a question of fact as to whether she would have been completely unable to make such an application at any time in that four and a half month period from January 2005 till 17 May 2005. There is, in my view, an inconsistency in her claimed incapacity and this is strengthened by the report of testing by the Neuropsychologist and in any event, her ability to present lucid and quite strong arguments about her condition during the hearing of this Tribunal are very influential in my determination. The applicant’s claim that her condition has got worse over time and that she lacks stamina after 10 minutes (at least in walking) and difficulties in her memory and concentration capacities, were not borne out in her convincing and relatively strong presentation by telephone during the hearing for about one and a half hours. That is not to say that she does not suffer from the condition of Chronic Fatigue Syndrome. However, as a finding of fact, I am not satisfied that the condition was the sole or primary cause of delay in making the application based on the written evidence and the applicant’s oral submissions. I therefore find the applicant does not satisfy s 11(2) of Schedule 2.

23. In the circumstances therefore, I find that the applicant is qualified under s 13 of the Act but is not qualified under s 11(2)(c)(ii) of Schedule 2 of the Act. She therefore is entitled to be deemed to have made the claim for social security payment on the day on which the Department was contacted, that is, 17 May 2005, and not on an earlier date.

CONCLUSION

24.     The decision under review is therefore affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy RFD, Senior Member

Signed:         .....................................................................................
  Elizabeth Young, Research Associate

Date/s of Hearing  9 April 2008         
Date of Decision  15 May 2008
Applicant appeared by telephone   

Respondent  Mr Hamilton, departmental advocate