Editors --- "Start date for disability support pension: residential qualification criteria" [2008] SocSecRpr 4; (2008) 10(1) Social Security Reporter, Article 4

• H0LMES and SECRETARY TO THE DEWR
• Background
• Discussion and the law
• Formal decision

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Start date for disability support pension: residential qualification criteria

H0LMES and SECRETARY TO THE DEWR

(2007/2006)

Decided: 30th November 2007 by N. Isenberg

Background

Holmes was an Australian citizen who lived in Thailand from 2001 until he returned to Australia in 2005. He had last visited Australia for a couple of weeks in 2001. In 2004 Holmes was diagnosed with carcinoma.

Holmes contacted Centrelink on17 March 2004 to enquire about disability support pension (DSP). Centrelink records noted that Holmes was living in Thailand, and advised that he would probably not be eligible for DSP. However, in order for Holmes to test his eligibility, Centrelink sent him the DSP claim forms to complete.

On 2 April 2004, Holmes again contacted Centrelink and advised he would be returning to Australia within six weeks and would be lodging a claim for DSP.

On 15 June 2004 Holmes advised Centrelink that he had just been discharged from hospital after having chemotherapy and was unable to return to Australia as he was too ill to travel. During this conversation he was advised that he would need to be in Australia to lodge his claim. He was provided with the same advice when he made enquiries on 30 June 2004 and 20 July 2004.

On 11 May 2005, Holmes returned to Australia and attended a Centrelink Office and indicated his intention to lodge a claim for DSP. On 17 May 2005 he lodged the claim.

Centrelink decided that Holmes’ claim was deemed to have been made on 12 May 2005, pursuant to s.13(1)of the Social Security (Administration) Act 1999 (the Administration Act). DSP was therefore granted with effect from 12 May 2005.

Holmes requested that payments of DSP should start from an earlier date because his illness prevented him from returning to Australia earlier to lodge his claim form.

The decision not to backdate the DSP claim was affirmed by an ARO on 8 August 2006 and the SSAT on 6February 2007.

Discussion and the law

To be granted DSP, a claim must be made in accordance with s.11 of the Administration Act.

The only way of making a claim is to lodge a written claim pursuant to ss. 16(1) and (2) of the Administration Act. Lodging a written claim is done by an approved form being delivered to a person and place approved by the Secretary: s.16(4) of the Administration Act.

Section 29(1) of the Administration Act also stipulates that a claim for a social security payment can only be made by a person who is an Australian resident and is in Australia. Any claim made whilst the claimant is not an Australian resident or not in Australia is ‘taken not to have been made’ pursuant to s.29(2) of the Administration Act.

Once a valid claim has been made, and the claimant meets the qualification criteria, the social security payment start date is worked out in accordance with Schedule 2 of the Administration Act. Generally, the start date for payment is the day on which the claim is made: part 2 clause 3 in Schedule 2. Clause 11, however, provides an exception by making provision for an incapacitated claimant’s start date to be backdated, provided each of the following sub-elements are met:

11 Incapacitated claimant

...

(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.

Section 13 of the Administration Act also contains provisions which allow the start date to be backdated. Provided all the sub-sections in s.13(1) are satisfied, the date Centrelink was contacted about a claim for a social security payment is deemed to be the date the claim was made. Section 13 provides:

(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.

Holmes submitted that he was initially qualified for DSP on17 March 2004, when he first contacted Centrelink to make enquiries about receiving the benefit because as of that date he met all the qualification requirements of s.94 of the Act, and was an Australian resident, but ‘just not living here’. He also argued he had 10 years qualifying residence, meeting the criteria in s.94(e)(ii) of the Act.

Centrelink conceded that as Holmes had previously resided here for a period that exceeded 10 years, he did have a qualifying residency which satisfied s.94(1)(e)(ii) of the Act.

Centrelink’s position was that Holmes met all the components of s.13(1) of the Administration Act and therefore, his claim was deemed to have been made on 12 May 2005, being the date that he first contacted Centrelink after his return to Australia. Centrelink also contended that whilst Holmes may have met the qualification criteria for DSP prior to 12 May 2005, he was not competent to lodge a claim until he had physically returned to Australia as required by s.29(1)(b) of the Administration Act. Centrelink also argued that there are no discretionary provisions within the legislation that allow him to have been deemed to lodge a claim prior to his return to Australia.

Holmes contended that while he was qualified for DSP on the date he first contacted Centrelink in March 2004,he was too ill to return to Australia at that time. Consequently, he was unable to lodge his application so as to receive the benefit of the ‘deemed lodgement ‘provisions in s.13 of the Administration Act. He referred to s.13(3A) of the Administration Act, which provides for a claim to be deemed as lodged on the date of contact, if the person has contacted about making a claim and has subsequently lodged the claim within 13 weeks and 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.

However, the AAT considered that as Holmes did not lodge a claim for DSP within 13 weeks after Centrelink was contacted, he could not receive the benefit of the backdating provisions ins.13(3A).

Holmes finally relied on clause 11 in Schedule 2 of the Administration Act. If his incapacity for work began more than five weeks before his claim was made, clause 11(2) allowed a claim to be backdated for a maximum of four weeks, provided that the sole or principal reason for the late application was the medical reason itself.

In relation to clause 11(2),Centrelink initially submitted that Holmes could never receive its benefit because although he met the criteria for the DSP before his return to Australia, he was not ‘competent’ to make a claim as he was not in Australia. The AAT considered that this was not the correct reading of clause 11(2).

The AAT found that Holmes was in fact qualified under s.94 of the Act for DSP, and this qualification was not affected by being in Thailand four weeks before the claim was made.

With the exception of clause11(2)(c), Centrelink conceded that Holmes met all the requirements of clause11(2). The only remaining issue was whether Holmes’ medical condition was the sole or principal cause of his failure to make the claim within five weeks after the day on which the incapacity began.

Centrelink argued that while his medical condition was a contributing cause, he was also delayed in returning to Australia because of other reasons, including difficulties in obtaining a visa for his partner. The AAT noted that this did not become an issue until late 2004, a long time after his diagnosis, and while he was still undergoing treatment for cancer.

Centrelink also argued that Holmes’ return to Australia was delayed by complications he suffered from other conditions after being exposed to the Tsunami in 2004. This also occurred many months after his initial diagnosis, and again while he was still undergoing treatment.

After Holmes gave evidence of his treatment, the AAT accepted that he met all the elements of clause 11(2)and that the principal reason for his failure to make the claim within five weeks after the day on which the incapacity began was his medical condition.

As Centrelink accepted that Holmes’ claim was made on 12 May 2005, the AAT found the start day of his DSP should be four weeks before his claim was made, namely 14 April 2005.

Formal decision

The decision under review was set aside, and the AAT substituted its decision that the start date for payment of DSP was 14 April 2005.

[S.P.]