Post by seth on Oct 16, 2014 14:15:44 GMT 7
Baxter and Secretary, Department of Social Services [2014] AATA 738 (14 October 2014)
Last Updated: 15 October 2014
[2014] AATA 738
Division
GENERAL ADMINISTRATIVE DIVISION
File Number
2013/5415
Re
Annie Baxter
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal
Senior Member N A Manetta
Date
14 October 2014
Place
Adelaide
The Tribunal affirms the decision under review.
.............. [Sgd] .........................................
Senior Member N A Manetta
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – application brought on behalf of applicant – eligible to receive DSP on date of sixteenth birthday – backdating of DSP from date application form received to date eligible to receive DSP – critical question – whether legislation permitted backdating – statutory criteria for backdating not satisfied – decision affirmed.
LEGISLATION
Social Security Act 1991, s 42, Schedule 2
Social Security (Administration) Act 1999, ss 11, 12, 13
CASES
Secretary, Department of Social Security v Cooper (1990) 26 FCR 13
Re Secretary, Department of Employment and Workplace Relations and Edelmann [2007] AATA 1003; 93 ALD 689
Burgess v Secretary of the Department of Family and Community Services [2004] FCA 136
Scott v Secretary, Department of Social Services [1999] FCA 1174
REASONS FOR DECISION
Senior Member N A Manetta
14 October 2014
This is an application brought on Ms Annie Baxter’s behalf for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 8 October 2013. The SSAT affirmed decisions taken within the respondent’s department to refuse a backdating of her Disability Support Pension (DSP) from the date when the application form was received in the respondent’s Department (20 February 2013) to the date she became eligible to receive it (namely, her sixteenth birthday, which fell on 20 November 2012). Ms Riley appeared for the applicant; Mr Visser for the respondent.
CRITICAL QUESTION
The critical question is whether the Social Security Act 1991 (the Act) or the Social Security (Administration) Act 1999 (the Administration Act) permits in the circumstances of this case a backdating of the pension to the date on which the applicant became eligible to receive it (or to some other date earlier than 20 February 2013). In my opinion, the answer to this question is no. I shall set out the background facts and then my reasons for this conclusion.
BACKGROUND FACTS
The salient background facts may be summarised as follows. The applicant, to whom I shall refer by her first name “Annie”, has serious disabilities, and it is agreed between the parties that she was fully qualified to receive a DSP on her sixteenth birthday. Annie’s disabilities prevented her from making an application herself. It is clear that any application would have to be made on her behalf.
Annie’s mother, Ms Rita Baxter, is principally responsible for her daily care and managing her affairs, including her entitlements under the Act. Ms Baxter was aware of the need to prepare an application for a DSP. In fact, she was advised by an acquaintance that she needed to begin well before her daughter’s sixteenth birthday given the large amount of paperwork involved.
On 12 October 2012, approximately one month before Annie’s birthday, Ms Baxter contacted Centrelink[1] and received a form in the post. She gave evidence that she did not know how to approach various items in the form. She gave evidence that she needed, for example, assistance from doctors to provide corroborating medical reports.
Annie requires constant care. In addition, Ms Baxter has a son, younger than Annie, for whom she is responsible. He, too, has special needs although they are less demanding than Annie’s. Ms Baxter gave evidence that her husband was employed full-time and left the task of dealing with Centrelink to her.
The overall thrust of Ms Baxter’s evidence, which I accept, was that she began off with good intentions; but the constant attention she gave to Annie’s daily needs, her son’s needs, and her domestic responsibilities prevented her, or at least distracted her, from seeking more timely assistance from medical practitioners and Centrelink. I also note that Annie regularly required hospitalisation at the relevant time. From the time of Annie’s sixteenth birthday there were two occasions when Annie required hospitalisation before a third hospitalisation on 17 February 2013. In the event, the DSP claim form was only finalised by Ms Baxter shortly before its receipt in the Department on 20 February 2013.
I should note that I do not imply any criticism of Ms Baxter in delaying the preparation of the claim form. The clear impression I received at the hearing was that she is devoted to her daughter’s welfare. Due to family pressures, however, she did not organise herself well enough to lodge the form on time.
REASONS
Legal entitlement to the pension
Ms Riley submitted that I should approach the application before me on the basis that Ms Baxter was the true claimant for the DSP. I do not accept that submission. In my opinion, Annie is the person legally entitled to the DSP. I accept that Ms Baxter has control over Annie’s affairs, and I also accept that Annie’s DSP may well be credited to an account on which Ms Baxter has unqualified rights to draw. It is hard to imagine how Annie’s financial affairs could be managed without some such arrangement in place. Nevertheless, Annie is the intended and lawful recipient of the DSP; and Ms Baxter, to the extent that she has access to the monies, must use them for Annie’s benefit. I add that there has been no criticism of Ms Baxter in her use of the pension monies. The point is, rather, that Ms Baxter is not the person legally entitled to the DSP: Annie is. This conclusion is not altered by the fact that Annie’s application could not be made by her and had to be made on her behalf by a responsible adult.
Necessity for a claim to be made by or on behalf of the person qualified
Under s 11 of the Administration Act, a person who wishes to be granted a DSP must make a claim. This is a key provision. An application may be lodged on a person’s behalf, as occurred in this case.
“Start day”
Section 42 of the Administration Act provides that a person’s start day in relation to a social security payment is the day worked out in accordance with Schedule 2. Schedule 2 specifies a rule that a person’s start day is the day on which the claim is made; but s 13(1) deems the claim date to be the first date of contact with the Department if a person makes a formal claim within 14 days of the contact date.[2]
Section 13 of the Administration Act
Section 13(1) does not apply as Annie’s claim form was not lodged within 14 days of Ms Baxter’s contact with Centrelink.
The other subsections do not apply either in my opinion. Other subsections do permit a claim to be backdated where the Department is contacted before a form is lodged and the form is lodged more than 14 days after contact. It is sufficient to note, however, that neither one of the two potentially relevant subsections can apply to Annie’s case because one clear precondition common to both is not satisfied. That precondition requires a claim form to be lodged no later than 13 weeks after the Department was contacted.[3] More than 13 weeks elapsed between Ms Baxter’s contact with Centrelink in mid-October 2012 and lodgement of the claim form on 20 February 2013.
Section 12 of the Administration Act
Ms Riley based her submissions on s 12(1)(a) of the Administration Act. This section allows the respondent to determine that “a person” has made “a claim for an income support payment” (called “the new payment” in the section) “if the person became qualified for the new payment while receiving another income support payment.”
I do not think this section applies because the precondition, introduced by the word “if”, is not satisfied. Ms Riley submitted that Ms Baxter became qualified to apply for the DSP while she was in receipt of a carer’s allowance in relation to her daughter. As I have already indicated, Ms Baxter, although responsible for Annie’s affairs, is not legally entitled to the DSP. This is not a case where Annie became qualified for a new payment while in receipt of some other income payment. Annie first became eligible to receive a social security payment in her own right on turning 16. Accordingly, the threshold condition for the application of s 12 is not satisfied.
Ms Riley pressed me with the Federal Court’s decision in Secretary, Department of Social Security v Cooper (1990) 26 FCR 13. I do not believe this case assists her submission. In this case, Ms Cooper became eligible on her sixteenth birthday to an invalid pension under the then applicable Social Security Act, 1947. The question in that case was whether a review form earlier lodged by her father, Mr Cooper, should be treated as an application made on his daughter’s behalf for that pension. The Court held that it ought to be so treated. Section 159(5)(b) of the Social Security Act, 1947 (now appearing in s 15 of the Administration Act) permitted the Secretary to treat a claim for a particular benefit as having been made when a form for a different, but similar, benefit had been lodged. In Cooper’s case, it is quite clear that Mr Cooper had sent in a review form in respect of the family allowance benefit he was receiving. Applying s 159(5)(b), the Court held this review form could be treated as an application filed on behalf of his daughter for an invalid pension.
That is not the applicant’s case in this Tribunal. There is no earlier claim form that Ms Baxter has lodged on behalf of her daughter. Had she lodged a form, s 15 of the Administration Act may have been relevant.
I should say that I fully accept Ms Riley’s submission that Cooper’s case stands for the proposition that the Act and the Administration Act, as beneficial legislation, should be construed broadly.[4] That is not a controversial proposition. This well-understood principle of construction, while requiring me to read statutory exceptions to section 11 broadly, does not permit me to waive prescribed statutory criteria (in the absence of a statutory authority to do so). Similarly, the authorities of Scott v Secretary, Department of Social Security [1999] FCA 1774 and Re Secretary, Department of Employment and Workplace Relations and Edelmann [2007] AATA 1003; 93 ALD 689, to which Ms Riley also referred me, do not suggest the respondent, or the Tribunal hearing the matter afresh, has this wider jurisdiction.
CONCLUSION
In my opinion, Annie is not eligible for a backdating of the DSP under the Act or the Administration Act.
PAYMENT EX GRATIA
At the end of the hearing, the question of a payment ex gratia was raised. In Annie’s case, I think a payment ex gratia should be considered. In my opinion, it does not matter whether one takes the view that Ms Baxter’s omission to lodge the form on time was, or was not, reasonable. I note again that I do not imply any criticism of Ms Baxter. If one takes the view that her omission was reasonable when judged against the very difficult circumstances she faced, there seems little reason why Annie should not receive a payment ex gratia. Even if one takes the view that Ms Baxter’s omission was unreasonable– and I use the word loosely to mean that she overlooked the possibility that her husband might, for example, manage the children for a day or so whilst she attended to the DSP paperwork– it should be remembered that Annie has been deprived of the benefit, not Ms Baxter. Once it is appreciated that the benefit is intended to improve Annie’s life, and that Annie was incapable of making an application for herself, it would seem appropriate that a payment ex gratia be made. In this regard, I note that Annie is severely disabled, and a backdated benefit may well serve to enhance the quality of her life in a meaningful way.
In all the circumstances, I would recommend that consideration be given to a payment ex gratia. I accept, as Mr Visser pointed out, that the decision whether to make such a payment is not reviewable. It seemed to me, however, that I ought to indicate my opinion since I have reviewed the matter and have had the benefit of hearing relevant evidence.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta
......... [Sgd] ................................
Administrative Assistant
Dated 14 October 2014
Date of hearing
12 August 2014
Advocate for the Applicant
Ms M Riley
Welfare Rights Centre (SA) Inc
Advocate for the Respondent
Mr C Visser
Department of Human Services
Program Litigation and Review Branch
Last Updated: 15 October 2014
[2014] AATA 738
Division
GENERAL ADMINISTRATIVE DIVISION
File Number
2013/5415
Re
Annie Baxter
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal
Senior Member N A Manetta
Date
14 October 2014
Place
Adelaide
The Tribunal affirms the decision under review.
.............. [Sgd] .........................................
Senior Member N A Manetta
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – application brought on behalf of applicant – eligible to receive DSP on date of sixteenth birthday – backdating of DSP from date application form received to date eligible to receive DSP – critical question – whether legislation permitted backdating – statutory criteria for backdating not satisfied – decision affirmed.
LEGISLATION
Social Security Act 1991, s 42, Schedule 2
Social Security (Administration) Act 1999, ss 11, 12, 13
CASES
Secretary, Department of Social Security v Cooper (1990) 26 FCR 13
Re Secretary, Department of Employment and Workplace Relations and Edelmann [2007] AATA 1003; 93 ALD 689
Burgess v Secretary of the Department of Family and Community Services [2004] FCA 136
Scott v Secretary, Department of Social Services [1999] FCA 1174
REASONS FOR DECISION
Senior Member N A Manetta
14 October 2014
This is an application brought on Ms Annie Baxter’s behalf for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 8 October 2013. The SSAT affirmed decisions taken within the respondent’s department to refuse a backdating of her Disability Support Pension (DSP) from the date when the application form was received in the respondent’s Department (20 February 2013) to the date she became eligible to receive it (namely, her sixteenth birthday, which fell on 20 November 2012). Ms Riley appeared for the applicant; Mr Visser for the respondent.
CRITICAL QUESTION
The critical question is whether the Social Security Act 1991 (the Act) or the Social Security (Administration) Act 1999 (the Administration Act) permits in the circumstances of this case a backdating of the pension to the date on which the applicant became eligible to receive it (or to some other date earlier than 20 February 2013). In my opinion, the answer to this question is no. I shall set out the background facts and then my reasons for this conclusion.
BACKGROUND FACTS
The salient background facts may be summarised as follows. The applicant, to whom I shall refer by her first name “Annie”, has serious disabilities, and it is agreed between the parties that she was fully qualified to receive a DSP on her sixteenth birthday. Annie’s disabilities prevented her from making an application herself. It is clear that any application would have to be made on her behalf.
Annie’s mother, Ms Rita Baxter, is principally responsible for her daily care and managing her affairs, including her entitlements under the Act. Ms Baxter was aware of the need to prepare an application for a DSP. In fact, she was advised by an acquaintance that she needed to begin well before her daughter’s sixteenth birthday given the large amount of paperwork involved.
On 12 October 2012, approximately one month before Annie’s birthday, Ms Baxter contacted Centrelink[1] and received a form in the post. She gave evidence that she did not know how to approach various items in the form. She gave evidence that she needed, for example, assistance from doctors to provide corroborating medical reports.
Annie requires constant care. In addition, Ms Baxter has a son, younger than Annie, for whom she is responsible. He, too, has special needs although they are less demanding than Annie’s. Ms Baxter gave evidence that her husband was employed full-time and left the task of dealing with Centrelink to her.
The overall thrust of Ms Baxter’s evidence, which I accept, was that she began off with good intentions; but the constant attention she gave to Annie’s daily needs, her son’s needs, and her domestic responsibilities prevented her, or at least distracted her, from seeking more timely assistance from medical practitioners and Centrelink. I also note that Annie regularly required hospitalisation at the relevant time. From the time of Annie’s sixteenth birthday there were two occasions when Annie required hospitalisation before a third hospitalisation on 17 February 2013. In the event, the DSP claim form was only finalised by Ms Baxter shortly before its receipt in the Department on 20 February 2013.
I should note that I do not imply any criticism of Ms Baxter in delaying the preparation of the claim form. The clear impression I received at the hearing was that she is devoted to her daughter’s welfare. Due to family pressures, however, she did not organise herself well enough to lodge the form on time.
REASONS
Legal entitlement to the pension
Ms Riley submitted that I should approach the application before me on the basis that Ms Baxter was the true claimant for the DSP. I do not accept that submission. In my opinion, Annie is the person legally entitled to the DSP. I accept that Ms Baxter has control over Annie’s affairs, and I also accept that Annie’s DSP may well be credited to an account on which Ms Baxter has unqualified rights to draw. It is hard to imagine how Annie’s financial affairs could be managed without some such arrangement in place. Nevertheless, Annie is the intended and lawful recipient of the DSP; and Ms Baxter, to the extent that she has access to the monies, must use them for Annie’s benefit. I add that there has been no criticism of Ms Baxter in her use of the pension monies. The point is, rather, that Ms Baxter is not the person legally entitled to the DSP: Annie is. This conclusion is not altered by the fact that Annie’s application could not be made by her and had to be made on her behalf by a responsible adult.
Necessity for a claim to be made by or on behalf of the person qualified
Under s 11 of the Administration Act, a person who wishes to be granted a DSP must make a claim. This is a key provision. An application may be lodged on a person’s behalf, as occurred in this case.
“Start day”
Section 42 of the Administration Act provides that a person’s start day in relation to a social security payment is the day worked out in accordance with Schedule 2. Schedule 2 specifies a rule that a person’s start day is the day on which the claim is made; but s 13(1) deems the claim date to be the first date of contact with the Department if a person makes a formal claim within 14 days of the contact date.[2]
Section 13 of the Administration Act
Section 13(1) does not apply as Annie’s claim form was not lodged within 14 days of Ms Baxter’s contact with Centrelink.
The other subsections do not apply either in my opinion. Other subsections do permit a claim to be backdated where the Department is contacted before a form is lodged and the form is lodged more than 14 days after contact. It is sufficient to note, however, that neither one of the two potentially relevant subsections can apply to Annie’s case because one clear precondition common to both is not satisfied. That precondition requires a claim form to be lodged no later than 13 weeks after the Department was contacted.[3] More than 13 weeks elapsed between Ms Baxter’s contact with Centrelink in mid-October 2012 and lodgement of the claim form on 20 February 2013.
Section 12 of the Administration Act
Ms Riley based her submissions on s 12(1)(a) of the Administration Act. This section allows the respondent to determine that “a person” has made “a claim for an income support payment” (called “the new payment” in the section) “if the person became qualified for the new payment while receiving another income support payment.”
I do not think this section applies because the precondition, introduced by the word “if”, is not satisfied. Ms Riley submitted that Ms Baxter became qualified to apply for the DSP while she was in receipt of a carer’s allowance in relation to her daughter. As I have already indicated, Ms Baxter, although responsible for Annie’s affairs, is not legally entitled to the DSP. This is not a case where Annie became qualified for a new payment while in receipt of some other income payment. Annie first became eligible to receive a social security payment in her own right on turning 16. Accordingly, the threshold condition for the application of s 12 is not satisfied.
Ms Riley pressed me with the Federal Court’s decision in Secretary, Department of Social Security v Cooper (1990) 26 FCR 13. I do not believe this case assists her submission. In this case, Ms Cooper became eligible on her sixteenth birthday to an invalid pension under the then applicable Social Security Act, 1947. The question in that case was whether a review form earlier lodged by her father, Mr Cooper, should be treated as an application made on his daughter’s behalf for that pension. The Court held that it ought to be so treated. Section 159(5)(b) of the Social Security Act, 1947 (now appearing in s 15 of the Administration Act) permitted the Secretary to treat a claim for a particular benefit as having been made when a form for a different, but similar, benefit had been lodged. In Cooper’s case, it is quite clear that Mr Cooper had sent in a review form in respect of the family allowance benefit he was receiving. Applying s 159(5)(b), the Court held this review form could be treated as an application filed on behalf of his daughter for an invalid pension.
That is not the applicant’s case in this Tribunal. There is no earlier claim form that Ms Baxter has lodged on behalf of her daughter. Had she lodged a form, s 15 of the Administration Act may have been relevant.
I should say that I fully accept Ms Riley’s submission that Cooper’s case stands for the proposition that the Act and the Administration Act, as beneficial legislation, should be construed broadly.[4] That is not a controversial proposition. This well-understood principle of construction, while requiring me to read statutory exceptions to section 11 broadly, does not permit me to waive prescribed statutory criteria (in the absence of a statutory authority to do so). Similarly, the authorities of Scott v Secretary, Department of Social Security [1999] FCA 1774 and Re Secretary, Department of Employment and Workplace Relations and Edelmann [2007] AATA 1003; 93 ALD 689, to which Ms Riley also referred me, do not suggest the respondent, or the Tribunal hearing the matter afresh, has this wider jurisdiction.
CONCLUSION
In my opinion, Annie is not eligible for a backdating of the DSP under the Act or the Administration Act.
PAYMENT EX GRATIA
At the end of the hearing, the question of a payment ex gratia was raised. In Annie’s case, I think a payment ex gratia should be considered. In my opinion, it does not matter whether one takes the view that Ms Baxter’s omission to lodge the form on time was, or was not, reasonable. I note again that I do not imply any criticism of Ms Baxter. If one takes the view that her omission was reasonable when judged against the very difficult circumstances she faced, there seems little reason why Annie should not receive a payment ex gratia. Even if one takes the view that Ms Baxter’s omission was unreasonable– and I use the word loosely to mean that she overlooked the possibility that her husband might, for example, manage the children for a day or so whilst she attended to the DSP paperwork– it should be remembered that Annie has been deprived of the benefit, not Ms Baxter. Once it is appreciated that the benefit is intended to improve Annie’s life, and that Annie was incapable of making an application for herself, it would seem appropriate that a payment ex gratia be made. In this regard, I note that Annie is severely disabled, and a backdated benefit may well serve to enhance the quality of her life in a meaningful way.
In all the circumstances, I would recommend that consideration be given to a payment ex gratia. I accept, as Mr Visser pointed out, that the decision whether to make such a payment is not reviewable. It seemed to me, however, that I ought to indicate my opinion since I have reviewed the matter and have had the benefit of hearing relevant evidence.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta
......... [Sgd] ................................
Administrative Assistant
Dated 14 October 2014
Date of hearing
12 August 2014
Advocate for the Applicant
Ms M Riley
Welfare Rights Centre (SA) Inc
Advocate for the Respondent
Mr C Visser
Department of Human Services
Program Litigation and Review Branch
