Editors --- "Disability support pension: start date of payment" [2010] SocSecRpr 3; (2010) 12(1) Social Security Reporter, Article 3

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Disability support pension: start date of payment

THOMAS and SECRETARY TO THE DFHCSIA

(2009/868)

Decided: 11th November 2009 by N. Isenberg

Background

Thomas was granted disability support pension (DSP) from 24 October 2008, but contended that the start date should be earlier because a prior claim lodged with Centrelink was misplaced. He appealed to the Social Security Appeals Tribunal (SSAT) which found there was no evidence that an earlier claim had been lodged.

Issues

The issue considered was whether Thomas could be granted the DSP from any date earlier than 24 October 2008.

Centrelink conceded that if the DSP was payable on 14 October 2008, Thomas would also be eligible for an Economic Security Strategy (ESS) payment pursuant to ss.900(2)(a)(ii) of the Social Security Act 1991 (the Act).

The Law

The relevant legislative provisions are set out in ss.13,16,24 and Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act).

To be granted the DSP, a claim must be made in accordance with Part 3, Division 1 of the Administration Act.

A written claim must be lodged, in an approved form, by delivery to a person or place approved by the Secretary for the purpose: ss.16(1), (2) and (4).

A person’s start day in relation to the social security payment is the day worked out in accordance with Schedule 2: s.42. Generally, the start date for payment is the day on which the claim is made. However, s.13 of the Administration Act contains provisions which allow a claim to be deemed to have been made on the date the Department was contacted by the person in relation to the making of the claim for the social security benefit. These provisions can only apply if certain specific criteria have been met.

Discussion

There was no dispute between the parties as to the following facts:

• Thomas was granted sickness allowance from 21 February 2008 and transferred to newstart allowance (NSA) from 15 May 2008.

• Thomas was issued a pension concession card on 25 June 2008 as a NSA recipient with a partial capacity to work as assessed by a Job Capacity Assessor (JCA).

• Thomas lodged a medical certificate on 5 September 2008 and was assessed by a JCA on 15 September 2008, which resulted in a letter being sent to him on 18 September 2008 inviting him to lodge a claim for the DSP.

• Thomas rang Centrelink on 23 September 2008 regarding the DSP invitation.

• Thomas contacted Centrelink on 24 October 2008 and a contact regarding intention to claim was logged and a further letter about intention to claim was sent to him.

• Thomas lodged a claim for the DSP at Centrelink on 29 October 2008 supported by a medical report by Dr Jin Choong, his GP, also dated 29 October 2008.

The AAT considered the evidence including:

• JCA Reports of 15 September 2008 and 5 November 2008; and

• A faxed reply from Dr Choong to Centrelink dated 28 July 2009 attaching a medical report by Dr Ferch dated 23 October 2008.

Thomas gave evidence from Rankin Park Rehabilitation Hospital where he was recuperating from a stroke and told the AAT he was adamant that he had lodged a claim for the DSP at Nelson Bay Centrelink earlier than 29 October 2008. He said that he had been initially assessed at Nelson Bay but because the assessor was on leave before completing her report, he was assessed again at Raymond Terrace. He said that Centrelink had then ‘backdated everything’ and he had a ‘disability card’ from 25 June 2008. He could not recall getting a letter from Centrelink inviting him to apply for the DSP. Thomas said that ‘Michelle’ at Nelson Bay Centrelink told him there was only $3 difference between his pension and the DSP and it was then that she recorded him as saying he was not interested in applying at that time as he was having an operation in October. Thomas was perturbed by this having been recorded as he was only going for an MRI and not an ‘operation’. He thought he should let Centrelink know everything and that was why he had told them about the MRI. He said ‘Michelle’ did not give him any form to fill out.

Thomas said that his daughter-in-law had filled out both applications for the DSP and had taken him to the Nelson Bay Centrelink office to lodge them: the first one was lodged ‘well before October’, possibly by the end of September; and the second one was lodged on his ex-wife’s birthday.

As to Dr Choong saying that he had only completed one treating doctor’s report on 29 October 2008, Thomas said that the doctor had definitely completed two: one at his Soldier’s Point rooms, and the other at his Nelson Bay rooms. Thomas did not think he was mistaken that the earlier report could have been a medical certificate in connection with the NSA.

The AAT spoke with the daughter-in-law who said she had never assisted Thomas to fill out any claim for the DSP, nor had she ever taken him to Centrelink at Nelson Bay. It was possible that he ‘got himself’ to Nelson Bay or that her brother-in-law had taken him. All she had completed was a form to say he was living with her.

In piecing together Thomas’ dealings with Centrelink, the AAT observed that it appeared that he was not necessarily well-served.

The AAT was informed that there was a JCA conducted somewhat earlier than the relevant period, and that it was sufficient to exempt Thomas from looking for work while in receipt of the NSA. From Dr Choong’s treating doctor’s report (TDR), it would appear that Thomas had been having neurological problems since December 2007, which subsequently were diagnosed as diabetes. He also had severe mobility limitations due to his cervical spondylosis and spondylolisthesis, which was later diagnosed by Dr Ferch. Centrelink records suggested that he was invited b y l e t t e r to apply for the DSP on 18 September 2008, although Thomas had no recollection

of receiving that letter. It appears that the invitation followed the assessment of 15 September 2008 where he was recorded as having little or no work capacity.

The AAT accepted that it was misreported on 23 September 2008 that Thomas was going for an ‘operation’ and it seemed unlikely that Thomas would profess disinterest in applying for the DSP when he had been speaking with someone from Centrelink about his benefits at least fortnightly, and often more frequently, according to the Centrelink file notes. Thomas appeared to have contacted Centrelink again on 1 October 2008 but there was no further discussion about responding to the invitation to apply for the DSP.

Centrelink’s advocate conceded that it was unclear if a claim form had ever been sent to Thomas.

A further JCA was conducted, as Thomas had said, on 5 November 2008. That JCA recorded Thomas as meeting the criteria for the DSP. The AAT accepted, there being no evidence of deterioration between 15 September and 5 November 2008, that Thomas met the criteria for the DSP at the earlier date.

Thomas, although adamant that he had completed two claims for the DSP, conceded that his memory was poor, especially since his stroke. For example, he was clear in his recollection that his daughter-in-law, whom he regarded as devoted to him, had assisted him in completing two claim forms, but her evidence lead to the view that he was mistaken. The AAT therefore did not accept that Thomas in fact lodged an earlier application for the DSP than that which Centrelink had on file, namely 29 October 2008.

The AAT then considered if there were any special circumstances which indicated that it was not reasonably practicable for Thomas to lodge the claim earlier under s.13A(3A) of the Administration Act. The AAT noted that the legislation provides no guidance as to the meaning of the term ‘special circumstances’ as set out in that section.

The term ‘reasonably practicable’ is also undefined in the legislation, although it was considered by the High Court in another context in Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304. According to Gaudron J at [53]:

Three general propositions are to be discerned from the decided cases:

1. t h e p h r a s e “ r e a s o n a b l y practicable” means something narrower than “physically possible” or “feasible”;

2. what is “reasonably practicable” is to be judged on the basis of what was known at the relevant time;

3. to determine what is “reasonably practicable” it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.

In the JCA report of 5 November 2008, Thomas was described as having very severe symptoms arising from his cervical spondylosis. He had pain radiating to his legs, upper back and arms and sometimes used a cane. He had pins and needles in the right hand and right foot. His ability to care for himself was affected and he moved from Queensland to live at Medowie with his son and daughter-in-law. He was unable to walk longer than two supermarket aisles without needing to rest. He had tiredness associated with his diabetes and he required daytime naps.

Thomas had to rely on his daughter-in-law to take him to Centrelink offices because he had no way of getting from Medowie to Nelson Bay. His son and his daughter-in-law worked, and he was reliant upon her rostered days off to assist him in his medical and other appointments.

The AAT examined local public transport around the Medowie and Nelson Bay area, using information obtained from the internet which suggested that Thomas would have to walk about 1km to get from his house in Medowie to the nearest bus stop and then take a 15 minute bus ride to the RAAF Base/Newcastle Airport.

There he would then transfer to another local bus service for a one hour journey to Nelson Bay. From the bus stop in Nelson Bay Thomas would have to walk another 200m to get to the Centrelink office. The bus timetables showed that the buses ran only every hour or so on weekdays. Raymond Terrace was marginally closer but public transport was similarly limited.

Centrelink contended that Thomas attended the Nelson Bay and Raymond Terrace Centrelink regularly and pointed to the record of his contacts with Centrelink. The AAT considered that while there were references to ‘customer [Mr T] contacted’ those offices, it was not clear that those contacts were necessarily made in person.

The AAT accepted that Thomas was reliant upon his relatives to transport him to Centrelink offices, given that public services in his area were poor, especially having regard to his limited mobility as identified in the JCA report. It was unclear if a claim form had ever been sent to Thomas, including when he was first invited to apply for the DSP; in those circumstances, lodgement would be even more dependent on physical attendance.

The AAT was therefore satisfied that, in the special circumstances of the case, it was not reasonably practicable for Thomas to lodge the claim earlier. He was therefore taken to have made the claim for DSP on the day on which the Department was contacted, which Centrelink conceded, for this purpose, to be 18 September 2008.

Having come to that view, it was not necessary for the AAT to consider if s. 13(2) of the Administration Act might apply, although, more detailed information about Thomas’ medical condition might have led to that view.

As conceded by Centrelink, Thomas would also qualify for the ESS payment as he was receiving the DSP in respect of 14 October 2008.

Formal decision

The decision under review was set aside.

[S.P.]