Editors --- "Disability support pension: when is a claim deemed to have been made; public holiday" [2013] SocSecRpr 17; (2013) 15(3) Social Security Reporter, Article 2

• EID and SECRETARY TO THE DFHCSIA
• Background
• Issues
• Relevant Legislation
• Discussion
• Formal decision

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Disability support pension: when is a claim deemed to have been made; public holiday

EID and SECRETARY TO THE DFHCSIA

(2013/558)

Decided: 8th August 2013 by S.A. Forgir

Background

On 3 January 2012, the applicant lodged a claim for disability support pension (DSP), following a verbal enquiry she had made about her entitlement to such a payment on 19 December 2011. The applicant’s claim related to chronic back pain (osteoarthritis), stress and depression. The claim was rejected. The applicant sought review of the decision by an ARO and by the SSAT, both of whom affirmed that refusal.

The applicant then sought review of the decision by the AAT.

Issues

The issue for determination by the AAT was whether the claim for DSP was made before or after 1 January 2012.

Relevant Legislation

Section 94 of the Social Security Act 1991, Section 13 of the Social Security (Administration) Act 1999.

Discussion

The law governing the way in which a person’s impairment is assessed for the purposes of DSP eligibility changed on 1 January 2012, following amendments made to the Social Security Act 1991 (the Act) by the Social Security and Other Legislation Amendment Act 2011. Before 1 January 2012, a person’s qualification for DSP was assessed by reference to the Impairment Tables in Schedule 1B of the Act. From 1 January 2012, the Impairment Tables are found in tables determined by an instrument made under section 26(1) of the Act.

A critical issue for the determination by the Tribunal was whether the claim should be considered by reference to the law that was in force in December 2011 or January 2012. In resolving that issue, the Tribunal needed to determine whether the claim lodged on 3 January 2012 could be ‘taken to have been made’ on a date earlier than 1 January 2012.

The Tribunal considered section 13 of the Social Security (Administration) Act 1999 and concluded that the claim for DSP could be taken to have been made on an earlier date than 3 January 2012, provided the claim was lodged within 14 days of the applicant’s contact with Centrelink on 19 December 2011.

In calculating the days between the contact and the lodgement of the claim, the Tribunal had regard to the Acts Interpretation Act 1901 (AI Act). The Tribunal noted that the 14 days would commence from the day after the applicant contacted Centrelink, having regard to section 36(1) of the AI Act. Having regard to that fact, the 14 days would have concluded on 2 January 2012, the day before the applicant lodged her claim. However, 2 January 2012 was a public holiday and, having regard to sections 36(2) and (3) of the AI Act, the Tribunal concluded that the applicant would be ‘allowed’ to lodge the claim on the first working day after the public holiday and still be treated as falling within the requirements of section 13 of the Social Security (Administration) Act 1999.

The Tribunal therefore found that the applicant’s claim for DSP was to be taken as having been made on 19 December 2011, such that the Impairment Tables in Schedule 1B to the Act were to be used to assess whether the applicant met the qualification requirements for DSP.

The Tribunal then proceeded to review the medical evidence and found that the applicant was suffering from fibromyalgia and depression, and that both conditions (although not diagnosed formally until after 19 December 2011) were permanent conditions from which the applicant was suffering as at 19 December 2011. The Tribunal further found that the conditions attracted an impairment rating of 30 points under Schedule 1B to the Act as at 19 December 2011, and that the applicant had a continuing inability to work as at 19 December 2011.

Formal decision

The AAT set aside the decision under review and substituted a decision that the applicant was qualified for DSP from and including 19 December 2011.

[S.O.]