Ralph and Department of Family and Community Services [2000] AATA 34 (10 January 2000)

Last Updated: 4 February 2000

DECISION AND ORAL REASONS FOR DECISION [2000] AATA 34

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S99/276

General Administrative DIVISION )

Re ANDREW RALPH

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION AND ORAL REASONS FOR DECISION

Tribunal Senior Member WJF Purcell

Date 10 January 2000

Place Adelaide

Decision For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.

(Signed)

WJF PURCELL

(Senior Member)

CATCHWORDS

SOCIAL SECURITY - pensions, benefits and allowances - Disability Support Pension - commencement date - whether applicant lodged application - reliability of evidence

Social Security Act 1991 ss.99, 100, 106, 107, 108

ORAL REASONS FOR DECISION

10 January 2000 Senior Member WJF Purcell

1. This is an application for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 14 April 1999, which affirmed a decision of an authorised review officer (ARO) of 20 January 1999, to set the commencement date of the applicant's Disability Support Pension (DSP) as 12 November 1998, and not backdate the payment to 16 July 1998 as requested by the applicant.

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), together with exhibits tendered by the parties. The applicant appeared on his own behalf and gave oral evidence. The respondent (the Department) was represented by Miss Hunt.

3. The applicant, who is 41 years of age, had been in receipt of Newstart Allowance since early 1998 when he lodged a claim for DSP on 3 November 1998 at the Glenelg office of Centrelink. The form was dated 3 June 1998. At the same time he lodged a report from his treating general practitioner, Dr R. Johns, dated 2 March 1998, but with a notation appearing on the last page [T4/22] "Review 2/11/98".

4. On 24 November 1998 he was examined by Dr Pamnany of Health Services Australia who considered him unfit for all work in the foreseeable future, and recommended medical review in 2 years time. The applicant was requested by Centrelink to provide some further information, and on 11 December 1998 he lodged that information at Centrelink's Edwardstown office, together with a short report from his treating doctor, Dr Johns [Exhibit R3].

5. On 15 December 1998 DSP was granted, together with rent assistance, from 12 November 1998, the first pay day after lodgement of the claim. On 18 December 1998 the applicant attended the Noarlunga office of Centrelink regarding the date of commencement of payment of DSP, advising that he first lodged a claim in July 1998. He was advised by letter of 22 December 1998 that the claim could not be backdated as he did not lodge it in July 1998 and, in addition, on the claim lodged on 3 November 1998 he stated that he did not finish work until 26 October 1998. The applicant requested a review of the decision and stated:

"I originally put in my DSP form on 16 July to the Newstart desk. They said they would send it down to the DSP area. Later that day in discussions with the DSP desk I was told that it would be better to make sure that I have my specialist report in the submission. As I was still waiting for the latest specialist report I asked to have back the DSP form and said that I would put it in when I obtained the report. This is what I did."

6. The ARO affirmed the decision on 20 January 1999 and in a letter outlining his reasons said in part:

"You stated that you had handed a completed DSP claim to the Newstart area of the Glenelg office on or about 16 July 1998 but asked for it back on the same day, as you had been told that it would be necessary to lodge a further medical report. The Glenelg office is unable to verify that a claim had been lodged, and there is no record, either in paper or computer form, to indicate that a claim had been received.

The evidence on which I based these findings was your statement, the available file papers, and the computer file." [T18/87]

7. On 19 February 1999 the applicant applied for review, and on 14 April 1999 the SSAT affirmed the decision. The applicant has applied to this Tribunal for review of the decision.

8. As far as is relevant for the purposes of this review, sections 99, 100, 106, 107 and 108 of the Social Security Act 1991 (the Act) provide:

"99. Disability support pension is not payable to a person who is qualified for the pension, before the person's provisional commencement day (identified under section 100).

100.(1) Subject to this section, a person's provisional commencement day is the day on which the person claims the disability support pension.

...

106.(1) A person who wants to be granted a disability support pension must make a proper claim for that pension.

...

107. To be a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary.

108.(1) To be a proper claim, a claim must be lodged:

(a) at an office of the Department; or

(b) at a place approved for the purpose by the Secretary; or

(c) with a person approved for the purpose by the Secretary.

..."

9. In the course of its reasons for decision the SSAT said at T2/6-7:

"... Mr Ralph said he was prompted to apply for disability support pension after receiving a specialist's report. Mr Ralph told the Tribunal that during this time his specialist has recommended a rehabilitation course and physiotherapy treatment which he understood was to be covered by Comcare legislation. However, he has not heard anything from them.

Mr Ralph said that he had picked up a disability support pension claim form in about April, May or June 1998 from the disability support pension counter at the Glenelg customer service centre of Centrelink. Mr Ralph recalls filling out the form and giving it to the newstart section of the Glenelg office to show them what he had done. Mr Ralph said he has a recollection of filling in two forms because he did not like his writing on one of the forms. After going to the disability support pension section on the ground floor at Glenelg several times to ask questions, Mr Ralph said he handed the form to a woman. Mr Ralph recalls wanting to lodge the form but being aware that he had no medical reports to support the form. Mr Ralph believes that on 15 July 1998 he lodged his disability support pension form with Centrelink. He told the Tribunal that he had worked out the date using an old correspondence file. The file was not available at the hearing. He was pretty sure a form had been lodged prior to November 1998 because he had filled out two forms but as at November 1998 only had the one form.

The Tribunal asked Mr Ralph if he could provide any explanation as to why the disability support pension claim form was signed by him on 3 June 1998 yet was not lodged with the Centrelink office until 3 November 1998. Mr Ralph said he cannot provide an explanation for that. The Tribunal also asked Mr Ralph why the treating doctor's report, supplied by Dr Richard Johns, was signed by Dr Johns on 2 March 1998 but not lodged with Centrelink until 3 November 1998. Again, Mr Ralph had no explanation for this. The Tribunal clarified with Mr Ralph that the notation "review 2/11/98" on the treating doctor's report is most probably Dr Johns' writing.

Mr Ralph went on to tell the Tribunal that he went overseas for about four weeks in September 1998 whilst he was on newstart allowance and his payments stopped. Mr Ralph believes that if he was to be backdated disability support pension he would be entitled to payments whilst outside of Australia."

10. The applicant submits that he lodged his DSP claim on 16 July 1998, pending provision by him of a specialist report. He provided the specialist report at about the same time as he lodged a further application on 3 November 1998. He should be back-paid therefore to 16 July 1998.

11. The Department argues that the applicant lodged the DSP application on 3 November 1998 at Glenelg, together with his treating doctor's report. The applicant's personal file, which was produced at the Hearing, has no record of receipt of a specialist's report either before or after 3 November 1998. There is no record of lodgment of a DSP claim before 3 November 1998, and, in accordance with the Act, pension is payable from 12 November 1998.

12. The applicant gave oral evidence. He was an unimpressive witness. His evidence was vague, unconvincing and contradictory. He said that he was sure that he lodged the DSP claim about 16 July 1998 because he had recorded it on a page in his notebook [Exhibit A1] and that this was at the time he was seeing his treating general practitioner and his solicitor, for advice regarding his workers' compensation claim.

13. The applicant gave evidence that he had Dr Johns' report dated 2 March 1998 in his possession when he allegedly lodged his application on 16 July 1998. He said that he did not lodge the report, because he was told by Centrelink staff that he needed a specialist report. He said that he could not recall whether in fact he had been examined by his orthopaedic specialist, Dr Ormandy, by that time. He says that there is a report from Dr Ormandy in existence, and he recalls lodging it the same time as his second application on 3 November 1998. He cannot understand why it is not in his personal file. He thinks it may be that he provided it to Dr Pamnany of Health Services Australia when he was interviewed.

14. The applicant denied in evidence that he has memory problems, but I note that Dr Pamnany reported on 24 November 1998 at T21/108:

"He is thus disabled from manual work because of the limitation on movements and is not suitable for retraining until his cognitive function can improve after reduction in analgesics and this is only likely if he had spinal surgery."

15. In any event, I found the applicant's evidence unreliable, and I am not able to prefer his evidence to the documentary evidence in these circumstances. I do not accept his evidence that he lodged his claim for DSP on 16 July 1998. He may well have discussed the possibility of applying for DSP on several occasions with Centrelink staff, but I am satisfied, on the evidence, that the applicant lodged his claim for DSP on 3 November 1998, and not on 16 July 1998, or any date prior to 3 November 1998. In these circumstances therefore by force of legislation, the date of effect of payment of DSP is 12 November 1998.

16. For these reasons, the Tribunal affirms the decision under review.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

Signed: .....................................................................................

Personal Assistant

Date/s of Hearing 10 January 2000

Date of Decision 10 January 2000

Counsel for the Applicant In person

Solicitor for Applicant -

Counsel for the Respondent Ms C. Hunt

Solicitor for the Respondent Centrelink