Editors --- "Request for review: applying for an alternative benefit not a request" [2010] SocSecRpr 12; (2010) 12(1) Social Security Reporter, Article 12

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Request for review: applying for an alternative benefit not a request

SECRETARY TO THE DFHCSIA and LAMOTTE

(2009/978)

Decided: 21st December 2009 by B. H. Pascoe

Background

Lamotte initially claimed disability support pension (DSP) in June 2004, for the conditions of cervical spine disc damage, schizophrenia, agoraphobia and panic attacks. Her claim was rejected by letter, on the grounds that the medical conditions were not fully treated and not necessarily permanent. On 26 July 2004, Lamotte subsequently made application for, and was granted, newstart allowance (NSA).

On 30 October 2007 Lamotte lodged a new claim for the DSP. This was rejected; however, on 3 March 2008, the Authorised Review Officer (ARO) set aside the decision and backdated the claim to 20 August 2007. Lamotte sought a review of this decision claiming that the grant of the DSP should be backdated to the initial 2004 DSP claim. An ARO allowed backdating to 6 August 2007.

The Social Security Appeals Tribunal (SSAT) found that the subsequent medical evidence showed that Lamotte had satisfied the requirements of s.94(1)(a), (b) and (c) of the Social Security Act 1991 (the Act) at the time of her application in 2004 and that her entitlement to the DSP should be backdated to 17 May 2004. The SSAT found that the preliminary claim for the NSA in July 2004 could be considered a request for a review of the decision to reject her claim for the DSP. The SSAT mentioned that the ARO had apparently considered treating the claim for the NSA in 2004 as a request for a review.

Issues

The Department argued that the medical evidence at the time of the 2004 claim and within 13 weeks of the claim did not indicate that the conditions were fully diagnosed, treated and stable. It was also submitted that a mere lodgement of an application for another benefit cannot amount to a request for a review of a decision.

Legislation

Section 107 (2) of the Social Security (Administration) Act 1999 (the Administration Act) provides for the date of effect of a successful request for a review of a decision when a request for review is made within 13 weeks of the original decision. Section 107(3) provides for the date of effect if the request for review is made more than 13 weeks after notice is given.

Consideration

The AAT observed that neither the Act nor the Administration Act detail what is meant by a request for review, but that ‘it is clear that there must be some evidence of an intent to question the rejection ...’ In this case the AAT found no such evidence. Lamotte stated that she did not know that she could appeal the rejection of the claim in 2004; despite a letter sent on 6 July 2004 which clearly set out the appeal rights.

The AAT acknowledged that Lamotte’s present circumstances were ‘difficult, possibly dangerous’ and expressed sympathy for her position. However, the AAT found that ‘simply applying for an alternative benefit cannot normally be accepted as a request for a review of a decision to reject a prior claim.’ The AAT found it unnecessary to consider Lamotte’s qualification for the DSP in 2004.

Formal decision

The AAT set aside the decision of the SSAT and affirmed that Lamotte was entitled to the DSP from 6 August 2007.

[M.R.]