AAT - The Final Appeal

[spaceyone]

For our new members, the following is the link we use to check on cases passing through the AAT, which might interest us.

www.aat.gov.au/default.htm


Looking through it this morning, I find a case about a lady who was injured at work, and put on Newstart for 3 years while waiting 3 years for compensation. Centrelink then snatched back a good chunk of her compensation.

This case is a good demonstration of how heartless these people are.


INTRODUCTION

Centrelink has recognised that Ms Edit (the applicant) has impairments which entitle her to receive disability support pension (DSP). She has been granted disability support pension from 19 October 2010. I have to consider whether her eligibility for that benefit can be backdated to an earlier date. I also have to consider whether Centrelink was correct to recover a charge amount from a compensation settlement that was received by the applicant in respect of her 2007 workplace injury.


BACKGROUND

2007 DSP Claim

On 14 June 2007, the applicant made a claim for DSP. On 2 August 2007, Centrelink made a decision to reject that claim essentially on the ground that her back condition had not been investigated, treated and stabilised. On 6 November 2007, that decision was affirmed on internal review by an authorised review officer (ARO). On 31 January 2008, the Social Security Appeals Tribunal (SSAT) also affirmed the decision.

On 11 April 2012, the applicant applied to this Tribunal for an extension of time to lodge an application for review of the decision. On 11 May 2012, a Presidential Member of this Tribunal made a direction to refuse the application for an extension of time (Application No 2012/1425). Accordingly, I do not have jurisdiction to consider whether the applicant should have been granted DSP in 2007.

2010 DSP claim

On 19 October 2010, the applicant contacted Centrelink to make another claim for DSP. On 28 October 2010, she lodged a claim form for DSP. On 16 December 2010, Centrelink made a decision to grant the applicant DSP with a start date of 19 October 2010, this due to her claim being deemed to have been lodged on 19 October 2010 when she informed Centrelink of her intention to claim DSP.[1] On 26 August 2011, the applicant sought review of the decision to grant her DSP from 19 October 2010. She then contended that the start date for DSP should be 14 June 2007. On 3 November 2011, an ARO affirmed the decision to grant the claim from 19 October 2010. On 20 January 2011, the SSAT affirmed the decision to grant DSP from 19 October 2010.

WORKPLACE INJURY

On 12 April 2007, the applicant suffered a workplace injury when she was working on a (edit) farm where she was required to lift boxes and bags that weighed in excess of 30 kilograms. From June 2007 to 18 October 2010, the applicant was given newstart allowance. From 30 May 2007 to 27 September 2007 she also received periodic compensation payments totalling $3,114.60.[2] On 23 December 2010, Centrelink was advised by WorkCover Queensland (WorkCover) that the applicant had settled her compensation claim for $104,764.10: this had occurred on 16 December 2010.
On 29 December 2010, Centrelink made a decision to impose a compensation preclusion period from 28 September 2007 to 18 December 2008 and to recover a compensation charge in the amount of $17,470.12. On the same date, a Compensation Recovery Notice was sent to WorkCover. On 26 August 2011, the Applicant sought review of the decision to recover the compensation charge. On 2 November 2011, an ARO affirmed the decision to recover the charge amount. On 20 January 2012, the SSAT affirmed the decision to recover the charge amount.
ISSUES

I have to decide whether DSP can be granted at an earlier date than 19 October 2010. I also have to consider whether the decision to recover a compensation charge of $17,470.12 is correct


www.austlii.edu.au/au/cases/cth/aat/2012/345.html

[latindancer]

I thought I was going to have an AAT hearing today. Luckily I phoned a couple of days ago and they put me straight. At first there is a preliminary phone conference with myself, an AAT person, and a Centrelink representative. This establishes the issues involved. There may be a further one or even two of these. THEN a hearing date is set.
My phone conference today lasted 10 or 15 minutes. We established that neither myself nor Centrelink are going to budge. I was then given the option to present any new facts which I may want to present in writing. This has to be done by a certain date, and I have to send copies to CL and the AAT.. Centrelink then posts me a written brief of the outline of their argument. The hearing date is after this (It will be in November sometime).
The Centrelink guy seemed nice enough....without any prompting he offered to follow up my latest claim for being paid the single rate whilst I am in Oz and my wife is in Thailand. I HAD thought it would happen automatically, since the decision was made previously to do so. And I was paid the single rate for 5 1/2 months this year (just returned from Thailand). But no....Centrelink had told me last week "it has to be run past an ARO".
And we know what THAT means, don't we ? A long wait.

The thing that irritates me is that Centrelink takes such leeway in interpreting legislation. They say "we can do this, but in certain circumstances can do that"....etc etc, but in reality there is enough precedent EITHER way to do whatever they damn well like. In other words, they come across as power mongers who get whatever they want because they straddle an issue and whichever way it starts to go, they counter that with an argument or precedent which they say has validity. Things have validity because they SAY they do.
It's infuriating and almost like being in a kind of Alice In Wonderland-type world, where things mean only what Humpty Dumpty SAYS they mean.

[Banjo]

Funny, my last ARO I hounded it through in weeks, but I just can't seem to get motivated on this one, it's been 6 weeks now.
Even the MP discussion is going nowhere because I can't be bothered to pick the phone up.
No excuse for you younger guys though, it's the squeaky wheel that gets the grease.

[Banker]

L.D. I agree with a lot of what you are saying, they have far too much control.

[latindancer]

Well, I had my actual AAT hearing today. What an ordeal ! Currently I am in an intensely irritated state of mind.
It started out ok, and I had been assured it would be all informal and that the person hearing it was fairly empathic. But the tribunal member didn't seem to see things from my point of view and I had difficulty explaining my viewpoint. He is a barrister who is sometimes in the Federal Court, working part-time as a tribunal member in the AAT.
Barristers seem to have their own type of logic......they come at ideas from a different angle than the rest of us.
We did communicate alright in many ways (he said he works in Asia sometimes), but it was also difficult.
There was a Centrelink legal representative present also. It was very irritating when I said something and he immediately blew it up out of proportion. To illustrate that I do not benefit by the pooling of resources and that in fact I pay more than 50% of our expenses, I admitted that I had given a small gift to a family member, and that because in Thai culture I was expected to look after my wife, amongst other things I took her for a pizza every 2 weeks.
Centrelink's argument was that I was benefiting by the pooling of resources (my wife works and earns $90 / week). Centrelink say that this is slightly more than the average wage in Thailand. However I say that I can not benefit by the pooling of resources as I always pay more than 50% (and Welfare Rights provided me with a list of past cases where failure to benefit from the pooling of resources is grounds for my winning this case). When I detailed the things I pay more for, Centrelink said that these things benefit my wife and her family and that this should not be paid for by the Australian public purse. However it is a very small amount in relation to the amount by which they have reduced my payment. For instance, the pizza which we have every fortnight costs about $23 and I eat half of it, anyhow !
I really felt like shouting at the Centrelink guy and giving him a piece of my mind. And I must confess that a little fantasy did appear in my mind in which I was giving him a good smack in the chops.
There is no real sense of proportion in my being reduced to the married rate whilst in Thailand. They reduced my Centrelink payment by 30% !!!
I'm not holding my breath for the outcome, but if I lose, I WILL, ABSOLUTELY AND DEFINITELY take it to the Federal Court. The thing is though, I need the money NOW.....I've got nothing.

[Banjo]

Great job staying cool under difficult circumstances mate.

When I detailed the things I pay more for, Centrelink said that these things benefit my wife and her family and that this should not be paid for by the Australian public purse.

This is of enormous interest, he is saying you can only spend your pension money on things approved of by Centrelink.
Anything you buy from an overseas company for instance would not qualify, donations to organisations providing overseas aid would not be your decision to make, what is the difference between giving money to someone YOU select and giving money to World vision?

What was the last time they cut off a drug addict for spending money on heroin that benefits a long line of crims including foreign suppliers and manufacturers?

[latindancer]

I can see your point, but how do you reckon I can use this ? I apparently have one last chance to say something before the decision is made ......I called them later because I was so dissatisfied by the proceedings. As long as the Centrelink representative also receives a copy, I have till 2pm tomorrow to say something more.

[howdo]

A very good point Banjo, perhaps Centrelink can provide documentation as to what we can and cant spend our money on.
Good luck LD.

[Denis-NFA]

@ld.....

hang in there mate.....

what you underscore is that we go into these things like lambs to the slaughter....or road kill as I describe it....

it is a court of law and in a proper legal court you are entitled to, admittedly a court appointed lawyer, have someone represent you.

I think it is time that we start a campaign to have legal representation from the point of ARO's, SSAT and AAT's.

THEY are treating us with contempt.

[latindancer]

Thanks, guys.
nofixedaddress, I'm almost certain a person can have legal representation in the AAT. But you're right about lambs to the slaughter.....it really did feel like that.

[latindancer]

Although this thread is about AAT appeals, I'd like to briefly mention something which came up at my previous hearing, in the SSAT.
Whilst rejecting my claim, the tribunal member stated the main reason that he was denying my claim. I shall paraphrase :
"It seems to the tribunal that, whilst I may have had no savings on my return to Australia, I was nevertheless (helped by Thailand's lower living costs), able to save for airfares and budget my living costs without incurring debt whilst in Thailand".
How utterly presumptuous ! The thing is.....he didn't ASK me if I was in debt, which I AM. I didn't really get a chance to tell him too much because it was mostly a situation where HE was in control and asking all the questions. Then it was over and he was telling me he'd give me the results within a week or two.
It seems that they will only give you a section 24 exemption if you are in debt and cannot meet your living costs, and/or afford to return to Australia. But of course if you're living on the streets or in the jungle of Thailand because you've run out of money, you can't exactly return to Australia and wait for an SSAT hearing, can you ? Even if you have to turn to friends or family (if there ARE any who will lend you money), that is a terrible situation to be in. I know.....I'm currently IN it.
Good grief ! Talk about a Catch-22 situation........
Does anyone remember the name of that person who was on this forum recently and it looked like he couldn't afford to return to Oz ?

[Banjo]

I think Banker knows him.

Anyone who had met me knows that I have a direct verbal communication problem.
In a my last two situations where I had to deal with an appeal/review I went over my entire case and wrote it down trying to cover every issue and my reasoning and explanation behind this.
The SSAT took this very well, the single officer took a copy and admitted it left her very little to say.
We spent the rest of the session just discussing minor side issues.

I've done the same with my current Administrative Review, I like this because any trick question that comes up, you just say you have already addressed this in your opening statement.
There is no he said/she said afterwards because they have it in writing.