Editors --- "Disability Support Pension: start date" [2013] SocSecRpr 29; (2013) 15(4) Social Security Reporter, Article 5

• TOBIAS and SECRETARY to the DSS
• Background
• Issues
• Discussion
• Formal decision

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Disability Support Pension: start date

TOBIAS and SECRETARY to the DSS

(2013/740)

Decided: 15th October 2013 by R.G.Kenny

Background

In September 2007, Tobias suffered a closed head injury in a fall. On 15 October 2007, he made a claim for newstart allowance, which was granted

and paid until around May 2008.

On 6 April 2009, Tobias contacted Centrelink to enquire about claiming newstart allowance. The claim was granted with a start date of 6 April 2009. From 14 October 2010 until 12 October 2011, Tobias operated his own property maintenance business, with support and monitoring from a New Enterprise Incentive Scheme provider.

On 16 December 2011, Tobias claimed newstart allowance, which was granted from 23 December 2011.

On 26 March 2012, Tobias contacted Centrelink about making a claim for disability support pension (‘DSP’). He lodged a medical certificate on 5 April 2012, and lodged a claim for DSP on 17 April 2012. The claim was granted, and was backdated (on review before the Social Security Appeals Tribunal) to 16 December 2011.

Tobias sought review of the SSAT’s decision, and sought payment of DSP from 6 April 2009. It was submitted that this date should be recognised as the start date for DSP, as the continuing effects of the brain injury suffered by Tobias prevented him from claiming DSP at that time. It was submitted that Tobias’s brain injury was fully treated and stabilised by April 2009.

It was submitted on behalf of the Secretary that, although Tobias had a physical impairment as a consequence of the head injury sustained in September 2007, Tobias did not reach the required level of 20 points of impairment under the Impairment Tables prior to 16 December 2011, and further that Tobias did not have a continuing inability to work before 16 December 2011.

Issues

The issue for determination by the AAT was whether the claim for DSP could be taken to have been made prior to 16 December 2011.

Discussion

After reviewing the available medical evidence, the Tribunal was satisfied that Tobias’s condition was permanent as at the date when he contacted Centrelink about making a claim for newstart allowance in April 2009, and that his condition met the criteria for 20 impairment points in Table 8 of the Impairment Tables at that time.

The Tribunal further found that the fact that Tobias had been engaged in remunerative work between 2008 and 2011 did not necessarily preclude him from satisfying the work component of s. 94 of the Act. The Tribunal found that the cessation of Tobias’s work, including that relating to his business, was related to the consequences of his brain injury. The Tribunal found that Tobias was not capable of reliably performing open,

unsupported employment on a sustainable basis for a reasonable period as at April 2009 or at any time thereafter.

The Tribunal therefore found that Tobias met the requirements of s. 94 of the Act on 6 April 2009, when he contacted Centrelink about claiming newstart allowance.

The Tribunal then considered s.15(4A) of the Social Security (Administration) Act 1999, and whether it was reasonable to backdate the payment of DSP to 6 April 2009. The Tribunal accepted the medical evidence led by Tobias to the effect that one of the consequences of his brain injury had been a lack of insight into his limitations and an unrealistic expectation of his work capacity, and that these factors were major contributors to the delay in making the claim for DSP. The Tribunal further noted that Tobias was unaware of his right to claim DSP in April 2009.

The Tribunal found that Tobias was not required to show special circumstances in order for s. 15(4A) to be applied, rather he only needed to demonstrate acceptable reasons for the delay. The Tribunal was satisfied that Tobias had established acceptable reasons for the delay, and found that the DSP claim should be backdated to 6 April 2009.

Formal decision

The AAT set aside the decision under review and substituted a decision that the start date for the payment of DSP was 6 April 2009. The AAT remitted the matter to the respondent to determine the amount of arrears (if any) payable to Tobias.

[S.O.]