Editors --- "Disability support pension: backdating pension claim to date of claim for another payment" [2007] SocSecRpr 6; (2007) 9(1) Social Security Reporter, Article 6

• SECRETARY TO THE DEWR and EDELMANN
• Background
• The law
• Consideration
• Formal decision

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Disability support pension: backdating pension claim to date of claim for another payment

SECRETARY TO THE DEWR and EDELMANN

Decided: 4th January 2007 by R. Hunt and M. Thorpe

Background

Edelmann started work as a bus driver for the NSW State Transit Authority (‘STA’) in 1995. Later that year he was physically assaulted and suffered severe head injuries, which left him with memory loss, impaired cognitive function and left-sided weakness. He lodged a claim for disability support pension (DSP). This claim was granted in September 1995. In May 1996, however, he cancelled his pension as he had recommenced full-time work with STA.

Edelmann then claimed newstart allowance (NSA) from 5 May 1997. He also lodged another claim for DSP on 2 September 1997, which was eventually rejected as he did not supply further information. Edelmann attempted to support himself through paid employment, but eventually reclaimed NSA in May 1998.

It was not until 13 May 1999that Edelmann lodged another claim for DSP. On 2 August 2005 he requested that his claim for DSP on 13 May 1999 be back-dated to the date of his NSA claim on 5 May 1997. The SSAT decided that he was entitled to the backdating of payments of DSP from 5 May 1997. The Secretary appealed against the decision of the SSAT.

The law

The eligibility criteria for DSP are set out in s.94 of the Social Security Act 1991 (‘the Act’).

Section 15 of the Social Security Administration Act 1999 (‘the Administration Act’) sets out some circumstances in which a claim for one income support payment can be deemed to have been made for another income support payment. That section relevantly states:

(1) For the purposes of the social security law, if:

(a) a person makes an incorrect claim; and

(b) the person subsequently makes a claim for a social security payment for which the person is qualified; and

(c) the Secretary is satisfied that it is reasonable that this subsection be applied;

the person is taken to have made a claim for that social security payment on the day on which he or she made the incorrect claim.

...

(4A) For the purposes of the social security law, if:

(a) a person makes a claim for an income support payment (the initial claim ); and

(b) on the day on which the initial claim is made, the person is qualified for another income support payment (the other income support payment ); and

(c) the person subsequently makes a claim for the other income support payment (the later claim ); and

(d) the Secretary is satisfied that it is reasonable that this subsection be applied;

the person is taken to have made the later claim on the day on which the initial claim was made.

The Tribunal noted that a similar position may also arise under s.12 of the Administration Act.

Consideration

The Tribunal accepted that s.15(4A) permitted it to take Edelmann to have made the later claim for DSP on the day on which he claimed NSA, provided he met certain additional requirements. In order to effect a backdating, the Tribunal stated that it needed to be satisfied that Edelmann would have qualified for DSP in that period and that it would be ‘reasonable’ for the subsection to be applied.

The Tribunal considered the Full Federal Court’s decision in SDSS v Cooper (1990) 26 FCR 13 in some detail. In that decision the Full Court considered a now repealed provision of the Act that, at the time, allowed for the backdating of a person’s social security payment. The Full Court remarked that the provision, as an extension of benefits legislation, should be construed generously. Further, in the Full Court’s opinion, a benefit which ought to have been received should not be excluded because a disadvantaged person had not put in the ‘right’ claim in the technical sense. The Tribunal considered that Edelmann’s situation may be similar if it were found that he was disadvantaged by his brain injury when he made the claim for NSA in May 1997.

Did Edelmann qualify for DSP between 5 May 1997 and 13 May1999?

The Tribunal considered whether Edelmann was in fact qualified for DSP from 5 May 1997 to 13 May 1999. The Tribunal considered the evidence provided by his treating doctors and other specialists he saw during and after that period. The Tribunal also considered Edelmann’s oral evidence of the difficulties he experienced during his short periods of employment between 1997 and 1999. His evidence was that he had problems with sleep and fatigue which led to him being incapable of holding down any of the jobs he commenced.

The Tribunal noted that several of the medical reports prepared between 1995 and 1997 were quite hopeful in relation to Edelmann’s prospects of returning to full-timework. Some reports stated that he was coping well with his duties, while others said that he would eventually be able to return to work after treatment. However, the later reports from 1999 onwards showed that by that time, Edelmann was not coping either with his employment or with day to day living. He was living on the streets and was unable to cope in any work situation.

The Tribunal concluded that, on the balance of probabilities, Edelmann did qualify for DSP from 5 May 1997to 13 May 1999. This conclusion was reached on the basis of the medical opinions before the Tribunal as well as Edelmann’s oral evidence and STA’s records about his work performance. It was decided that Edelmann’s work history was consistent with his lacking the ability to work 30 hours a week in any normal work place. He therefore satisfied the requirement for DSP that he have a ‘continuing inability to work’, as it was defined in May1997.

It is worth noting that the Tribunal did not make any specific findings as to Edelmann’s rating under the Impairment Tables, as required by section 94 of the Act. It is unclear whether this issue had been conceded by the applicant prior to hearing.

Was it reasonable to treat Edelmann’s NSA claim as a claim for DSP?

The Tribunal then proceeded to consider whether it was reasonable to treat Edelmann’s claim for NSA in 1997 as a claim for DSP. The Tribunal noted that, with the continuing effect of his injuries, Edelmann could not have been expected to have formed a judgement about his entitlements in the same way as a person who did not have psychiatric problems. Edelmann’s oral evidence in respect of the delay in claiming DSP was that he was confused as to his entitlements at the time. His memory was poor and his employment at STA had just been terminated. The Tribunal noted Edelmann’s medical condition and his related inability to manage his affairs and understand or accept the nature and extent of his disability, and decided that it would be reasonable to treat his NSA claim on 5 May 1997 as a claim for DSP:

It was the very condition that qualified him for DSP that led to his failure to pursue a claim for DSP in 1997. (Reasons, para. 49)

The Tribunal also noted the Full Court ’s comment in Cooper in relation to the then equivalent provision. The provision:

Should be construed generously so that the palliation it offers of any rigidity... may be fruitful in favour of the disadvantaged persons with whose claims it is concerned. Its language should be applied, in accordance with the obvious intent, so that, if possible, a benefit which ought to have been received shall not be excluded by the failure of a disadvantaged person to put in the ‘right’ claim in a technical sense. (Reasons, para.50)

Formal decision

The Tribunal decided to affirm the decision of the SSAT.

[D.A.]