Brook and Secretary, Department of Family and Community Services [2002] AATA 1009 (23 October 2002)

Last Updated: 24 October 2002

DECISION AND REASONS FOR DECISION [2002] AATA 1009

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2000/370

GENERAL ADMINISTRATION DIVISION )

Re Ronald Brook

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE Mr D. Trowse (Member)

Date 23 October, 2002

Place Adelaide

Decision The Tribunal affirms the decision of the Social Security Appeals Tribunal dated 18 August 2000.

(signed)

J. A. KIOSOGLOUS

(Senior Member)

catchwords

SOCIAL SECURITY - pensions, benefits and allowances - disability support pension - decision of SSAT rejecting payment of arrears to applicant - what decision under review - power of Tribunal to review decision - whether applicant entitled to payment of arrears - date of commencement

Administrative Appeals Tribunal Act 1978 ss. 25, 37, 43

Social Security (Administration) Act 1999 ss. 3, 13, 41, 178, 179, Part 4 Division 5, Schedule 2

Social Security Act 1991 ss. 23, 94, 107, 1168

Social Security Legislation Amendment (Budget and Other Measures) Act 1996

Department of Family and Community Services v Sevel and O'Connell (1992) 38 FCR 540

Frost and Secretary, Department of Family and Community Services (AAT Decision, 17 August, 1995, Decision No. 10360)

Rogers and Secretary, Department of Family and Community Services [2001] AATA 94

Secretary, Department of Social Security v Cooper (1990) 26 FCR 13

Walker v Secretary, Department of Social Security [1997] FCA

REASONS FOR DECISION

23 October 2002 Senior Member J. A. Kiosoglous MBE

1. This is an application by Mr Ronald Brook (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) of 18^th August 2000 which affirmed a decision of a delegate of the respondent dated 30^th March 2000, as affirmed by an authorised review officer on 26^th May 2000, not to pay arrears of a Disability Support Pension (DSP) prior to 20^th March 2000. It appears that, notwithstanding an actual lodgement of the applicant's claim for benefit on the 6^th April 2000, the respondent has deemed, in terms of s. 13 of the Social Security (Administration) Act 1999 (Administration Act), the 20^th March 2000 as being the date of lodgement.

2. The Tribunal received into evidence the documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1978 (AAT Act), together with eighteen exhibits. There being no dispute as to the relevant facts, it was agreed that the matter in issue be determined on the basis of the papers and the submissions made by each of the parties. The applicant was represented by Mr D Bulloch of Westside Community Lawyers Inc. and the respondent by Mr R Kilderry, an advocate on its behalf.

THE ISSUE

3. The issue in this case is whether the applicant is entitled to be paid DSP for any period prior to 20 March, 2001.

BACKGROUND

4. The facts were agreed between the parties and we find that they are:

* The applicant suffered a back injury in 1979.

* For the period early 1981 to October 1989, the applicant was in receipt of an invalid pension at the full rate.

* The applicant married on the 10^th October 1987.

* Mrs Brook has received the aged pension since 1994 and fortnightly payments of workers' compensation since 1975.

* From 30^th October 1989 until 26^th March 1992, the applicant engaged in part-time work.

* From 30^th October 1989 to 12^th February 1990, the applicant received part payment of the invalid pension.

* On the 12^th February 1990 the applicant's pension was reduced to nil because of the combined income of the applicant and his spouse.

* Because of his back injury, the applicant ceased work in March 1992.

* Since 1993, the applicant has made a number of claims for DSP, all of which, with the exception of the last one lodged in April 2000, were rejected by reason of the combined income of the applicant and his spouse.

* Excluding the penultimate claim made on the 16^th April 1998, no applications for internal review were sought in connection with the earlier applications.

* In the re-consideration of the delegate's decision on the April 1998 application, the authorised review officer confirmed the decision on account of the combined income exceeding the allowed threshold.

* The applicant did not apply to the SSAT for review of the decision made with regard to his April 1998 claim.

* In April 2000, the applicant was granted a DSP payable from 20^th March 2000.

* By letter dated 26^th April 2000, the applicant sought internal review of the decision not to pay arrears of the disability support pension.

* The decision to refuse the payment of arrears was affirmed by an authorised review officer on the 26^th May 2000.

* On the 6^th June 2000, the applicant applied to the SSAT for review of the decision to refuse the payment of arrears.

5. It was also accepted by the parties and we are satisfied that, at all relevant times, the applicant met the medical, age and residential requirements stipulated in s. 94 of the Social Security Act 1991 (the SS Act). It is that section which sets the qualification criteria for the disability support pension.

CONSIDERATION

6. In reviewing a decision, the Tribunal must first identify the decision that it is being asked to review. It does that for two reasons. The first is to ensure that it has jurisdiction to review it for its jurisdiction is limited. The Tribunal only has jurisdiction if an enactment has provided that an application may be made to the Tribunal for review of that decision made in the exercise of powers conferred by that enactment or another enactment (AAT Act, ss. 25(1) and (2)). The second is to determine the parameters of the Tribunal's powers for, in reviewing the decision:

"... the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on a person who made the decision ..." (AAT Act, s. 43(1))

7. The decision of which the applicant has sought review is that which he described as dated 25^th August, 2000. The date reflects the date at the conclusion of the reasons for decision given by the SSAT. The SSAT stated that its decision had been made on 18^th August 2000 but it is clearly the same decision. This is a decision that the Tribunal has jurisdiction to review. This follows from the application of the provisions of Division 5 of Part 4 of the Administration Act. For the purposes of this case, Division 5 applies to a decision made with respect to a claim for DSP and all matters relating to DSP (Administration Act, s. 178(1)). Section 179(1) provides that, if a decision has been reviewed by the SSAT and has been affirmed, varied or set aside by the SSAT, the SSAT's decision may be reviewed.

8. What is the decision that is reviewed where, as in this case, the SSAT affirmed another decision? It is not the decision to affirm that is reviewed but the decision that is affirmed. This is the effect of s. 179(2)(a) of the Administration Act. On its face, it would follow that the Tribunal has jurisdiction to review the delegate's decision dated 30^th March 2000 for that is the decision affirmed by the SSAT. That means that, on its face, the decision under review is that refusing to pay to the applicant DSP prior to 20^th March 2000 and back to the date on which his claim was lodged in 1998 i.e. 16 April, 1998.

9. We have said "on its face" for we are mindful that the "decision" that the Tribunal may review is one that must have been made in the exercise of powers under an enactment. That follows from the fact that the word "decision" has the same meaning as in the AAT Act (Administration Act, s. 3(2)) and SS Act, s. 23(1)) and the provisions of s. 25 of the AAT Act. There is no provision in the SS Act that in itself enables a decision maker to decide that arrears of DSP may be paid to a person but such a decision may be made in the context of another decision or of reviewing another decision. That context would be a decision relating to the payment, suspension or cancellation of a DSP. This was recognised by the Full Court of the Federal Court in Secretary, Department of Family and Community Services v Sevel and O'Connell (1992) 38 FCR 540 (Wilcox, French and Lee JJ) when it said in the context with which it was concerned that:

"... The applicants did not seek review of the delegate's decision to cancel the allowance. They sought review of the decisions not to pay arrears. Each of the applications for review was made promptly after the decision to deny arrears, well within the three month period.

45. Counsel for the applicant acknowledges that this analysis is correct in form. But he argues that the substance of the matter is that the respondents were seeking a review of the cancellation decision, without which there could be no entitlement to arrears. We agree that the applications to review the decisions not to pay arrears inevitably raised the validity of the cancellation decision. ..."

10. The importance of the context becomes even more apparent from the final paragraph of their Honours' judgement. They were considering decisions to refuse to pay arrears of family allowance to Mrs Sevel and Mrs O'Connell whose family allowance had been cancelled and then reinstated but only from the dates on which they lodged fresh claims. Each was qualified to receive the payment during the period of cancellation. Reference was made to s. 168 of the SS Act, which provided for the date of effect of any decision by the respondent to grant a payment or increase a rate of payment. Of relevance was the provision that it took effect only on the day that review was sought if Mrs Sevel and Mrs O'Connell had sought review of the respondent's decision more than three months after receiving notice of a decision affecting their payment.

11. As we have noted, Mrs Sevel and Mrs O'Connell had applied within the three month period from the date of their being refused payment of arrears. That, however, did not necessarily lead to the conclusion that they were entitled to arrears even though it was accepted that they were entitled to family allowance. All turned upon whether or not they had been given notice of the original decision to cancel their family allowance. If they had been given that notice, consideration would have to be given to whether or not they had sought review within the three month period. If they had not done so, the payment of arrears was limited by s. 168. If they had not been given notice of the cancellation decision, s. 168 did not apply to limit the payment of arrears.

12. We note that the other decisions to which Mr Bulloch referred are consistent with this approach. Taking for example the decision of Deputy President Breen in Frost and Secretary, Department of Family and Community Services (17 August, 1995, Decision No. 10360), the issue was whether, in making an enquiry about the rate of pension that she was being paid, Ms Frost had sought review of a decision. Deputy President Breen found that her enquiry amounted to her seeking review. Consequently, she had sought review within three months of the respondent's decision having been made and her entitlement was not limited by the then equivalent of s. 168 of the SS Act. The same approach was adopted by Senior Member Beddoe in Rogers and Secretary, Department of Family and Community Services [2001] AATA 94. A case such as Secretary, Department of Social Security v Cooper (1990) 26 FCR 13 (Morling, Burchett and Lee JJ) was concerned with the proper interpretation of provisions of the SS Act then in force and relating to the requirement that a pension, benefit or allowance will only be made if a claim has been made and to the requirements with which a claim must comply (SS Act, ss. 158 and 159). The Full Court of the Federal Court said that those provisions:

"... should be construed generously so that the palliation it offers of any rigidity in ss. 158 and 159 may be fruitful in favour of the disadvantaged persons with whose claims it is concerned. Its language should be applied, in accordance with the obvious intent, so that, if possible, a benefit which ought to have been received shall not be excluded by a failure of a disadvantaged person to put in the 'right' claim in a technical sense. To construe the words of the subsection in a narrowly technical spirit would be quite perversely contrary to its evident purpose. It is intended to overcome technicality and to have as broad an operation as its language will allow." (paragraph 13)

13. Bearing these principles in mind, we have first identified the contexts in which arrears could be payable in this case. There are two: the applicant's claim for DSP deemed to have been lodged on 20^th March, 2000 and his previous claims. Taking first the claim of 20^th March, 2000, as it was then drafted, s. 41 of the Administration Act provided that:

"Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person's start day in relation to the social security payment."

A person's "start day" in relation to a social security payment was the day worked out in accordance with Schedule 2. A "social security payment" included a "social security benefit" which, in turn, included a DSP (Administration Act, s. 3(2) and Act, s. 23(1)).

14. Schedule 2 set out a comprehensive provisions for determining the start date. The general rule was found in clause 3 of Part 2 of that Schedule:

"If:

(a) a person makes a claim for a social security payment; and

(b) the person is qualified for the payment on the day on which the claim is made;

the person's start day in relation to the payment is the day on which the claim is made."

15. Part 3 provided that, in some circumstances, a person's start day in relation to a social security payment might be earlier than the day worked out under Part 2 (clause 7). Whether it was earlier depended upon the application of the rules in Part 3 of Schedule 2. Particular rules were formulated for particular social security payments in Division 3 of Part 3 but none applied to the DSP. Division 2 of Part 3 was concerned with social security payments generally and provided some instances in which payment could be backdated prior to the person's start day. The only provision which could conceivably have some relevance in this case is clause 11 which provides that:

"(1) If:

(a) a person becomes incapacitated for work as a result of a medical condition; and

(b) the person makes a claim for a benefit or pension within 5 weeks after the day on which the incapacity begins; and

(c) the person continues to suffer the medical condition from the day on which the incapacity begins until the claim is made;

the person's start day in relation to the benefit or pension is the first day on which the person was qualified for the benefit or pension in the period starting on the day on which the incapacity began and ending on the day on which the claim was made.

(2) If:

(a) a person becomes incapacitated for work as a result of a medical condition; and

(b) the person makes a claim for a benefit or pension more than 5 weeks after the day on which the incapacity begins; and

(c) the Secretary is satisfied that:

(i) the person has continued to suffer the medical condition from the day on which the incapacity began until the claim was made; and

(ii) the medical condition was the sole or principal cause of the person's failure to make the claim within 5 weeks after the day on which the incapacity began;

the person's start day in relation to the pension or benefit is the first day on which the person was qualified for the benefit or pension in the period of 4 weeks ending immediately before the day on which the claim was made.

16. Even if this section were applicable, the maximum amount of arrears to which the applicant could be entitled would be five or four weeks prior to 20^th March, 2000 being the date of his claim. We do not, however, consider that it is applicable for not only did the applicant not make his 20^th March 2000 claim within five weeks after the day on which his incapacity began (clause 11(1)) but his medical condition was not the sole or principal cause of his failure to make the claim within five weeks of the day on which his incapacity began. He may have made an earlier claim within that five week period but, for the moment, we are concerned only with the claim of 20^th March, 2000.

17. It follows that there is no basis upon which there can be a variation to the applicant's start day in this case. Therefore, it follows that a decision could not be made to pay arrears of DSP to the applicant in the context of his claim taken to have been lodged on 20 March, 2000. Subject to any qualifications made by the SS Act and the Administration Act, the Tribunal has all the powers and discretions that are conferred by the SS Act and the Administration Act upon the decision-maker but it has no greater powers than those conferred (AAT Act, s. 43(1) and see Walker v Secretary, Department of Social Security [1997] FCA, Burchett, Drummond and Mansfield JJ). As the decision-maker could not decide that arrears should be paid, the Tribunal cannot so decide.

18. That brings us to the second context in which arrears may arise and be payable. That is the context formed by the applicant's previous claims for DSP and, in particular, the context of his claim lodged on 16^th April, 1998. That claim was rejected by the respondent but the problem for the applicant was the method adopted by the respondent in calculating the rate of pension payable to him. After due allowance for the amounts of income being received by Mrs Brooks, the respondent in considering the claim lodged in April 1998 concluded that the rate payable was nil and, thus, no disability support pension was payable.

19. In the process of arriving at the foregoing conclusion, the respondent had cause to consider s. 1168 of the SS Act which provides a basis for determining the effect of compensation payments on a person's entitlement. Section 1168 (3B) provides that, if a person's partner receives a compensation affected payment, the benefit otherwise payable is to be reduced by half of the compensation payment. Alternatively, s. 1168 (3A) provides that amounts received by the partner and not classified as being compensation affected payments are to be totally offset against the benefit otherwise payable.

20. A matter of prime importance to the application of s. 1168 is the change introduced by the implementation of Social Security Legislation Amendment (Budget and Other Measures) Act 1996, which took effect from the 20^th March 1997. From that day forward, aged pensions were included in the definition of a compensation affected payment and, accordingly, benefits otherwise payable were to be reduced by half of the aged pension. Prior to this amendment, reductions were made to the extent of the full amount of the aged pension being received by the partner.

21. Unfortunately, the amendment was overlooked by the respondent in his determination of the claim lodged on 16^th April 1998. The benefit otherwise payable to the applicant was incorrectly reduced by 100% of the aged pension paid to Mrs Brook. There is no doubt that the applicant would have been entitled to receive a disability support pension had the reduction been made at the correct rate of 50%. Based on that concept, the applicant submits that his entitlement to receive the disability support pension should be backdated to the day upon which he lodged the claim which was erroneously determined by the respondent, that is, the 16^th April 1998.

22. Even recognising that the applicant's 1998 claim might have been refused incorrectly, we are powerless to amend the position by paying the applicant arrears of DSP to 1998. If we characterise the applicant's request to be paid arrears as a request to review the decision to refuse his 1998 claim, we must have regard to the provisions of s. 107 of the SS Act. That section, which had its origins in s. 168 considered by the Federal Court in Sevel and O'Connell, provides that:

"(1) Subject to subsections (2), (3) and (4), a determination under section 37 takes effect on the day on which the determination is made or on such earlier or later day as is specified in the determination.

(2) If:

(a) a decision (the original decision) is made rejecting a person's claim for a social security payment or a concession card; and

(b) the person is given a notice informing him or her of the original decision; and

(c) within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and

(d) a decision that the claim be granted is made as a result of the application for review;

the determination embodying the last-mentioned decision takes effect on the day on which the determination embodying the original decision took effect.

(3) If:

(a) a decision (the original decision) is made rejecting a person's claim for a social security payment or concession card; and

(b) the person is given a notice informing him or her of the original decision; and

(c) more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and

(d) a decision that the claim be granted is made as a result of the application for review;

the determination embodying the last-mentioned decision takes effect on the day on which the application for review was made.

(4) If:

(a) a decision (the original decision) is made rejecting a person's claim for a social security payment or concession card; and

(b) no notice is given to the person informing the person of the original decision; and

(c) the person applies to the Secretary, under section 129, for review of the original decision; and

(d) a decision that the claim be granted is made as a result of the application for review;

the determination embodying the last-mentioned decision takes effect on the day on which the determination embodying the original decision took effect.

(5) If:

(a) a decision (the original decision) is made rejecting a person's claim for a social security payment or concession card; and

(b) the person is given a notice informing him or her of the original decision; and

(c) the Secretary reviews the decision under section 126 without any application under section 129 for review of the decision having been made; and

(d) as a result of the review, a decision that the claim be granted is made more than 13 weeks after notice of the original decision was given to the person;

the determination embodying the last-mentioned decision takes effect on the day on which the determination embodying the original decision took effect."

23. There is no question that the applicant was given notice of each of the respondent's decisions to refuse his claims and, in particular, notice to refuse his 1998 claim. Even if his request to review the decision relating to arrears is regarded as a request to review the decision to refuse his 1998 claim and even if he were successful in that review, the effect of s. 107 is that the earliest date on which DSP would be payable to him would be the date on which he applied for review. That would be 26 April 2000 and so after the date of 20 March 2000 from which DSP has in fact been paid to him.

24. For the reasons that we have given, we do not consider that arrears of DSP are payable to the applicant prior to 20 March 2000. Therefore, we affirm the decision of the SSAT dated 18 August 2000.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J. A. Kiosoglous MBE and Mr D Trowse (Member).

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

John Howell, Associate

Date/s of Hearing 19 October 2001, 18 February 2002, 10 April 2002 & 5 June 2002

Date of Decision 23 October 2002

Counsel for the Applicant Mr D. Bulloch

Solicitor for the Applicant Westside Community Lawyers Inc

Counsel for the Respondent Mr R. Kilderry

Solicitor for the Respondent Advocacy and Administrative Law Team, Centrelink