Bosch v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 927

Middleton v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 569

Du Cros v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 549

Cropper v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 446

Bagh v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 128

Aslimoski v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 361

Anderson v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 306

Secretary, Dept of Employment and Workplace Relations v Cameron (No 2) (2007) FCR 450

McDermott v Dept of Family & Community Services [2005] AATA 135

Rajuc v Dept of Family & Community Services [2003] AATA 240

1. At the conclusion of the hearing of this application the terms of the decision made, and the reasons for decision, were stated orally. The Applicant requested written reasons for the decision under section 43(2A) of the Administrative Appeals Tribunal Act 1975, which are provided below.

1. The issue in this matter is whether a disability support pension is payable to Mrs Bendzovska ('the Applicant) from a date before 1 March 2012. In particular, an important issue is whether the disability support pension is payable to Mrs Bendovska as a result of an application that was lodged on 22 May 2008. The background in the matter is set out below. In this matter Mr Bendzovska appeared and spoke on behalf of his wife together with an interpreter.

1. Mr and Mrs Bendzovska have limited English and they have a Macedonian background. They were Swedish citizens until 2000 when they arrived to live in Australia. Prior to that time, they had visited Australia and by 2000 they had family and grandchildren living in Australia. Mr and Mrs Bendzovska had also had previous business interests in Australia and owned property in Australia by the time of their arrival in 2000.
2. Mr and Mrs Bendzovska have had multiple health problems. They were receiving a Swedish disability pension at the time of arrival and that continued for some little time in Australia. They applied for a disability support pension some time in 2001, but they were not successful. Mr and Mrs Bendovska indicated at the hearing that in 2001, Australia did not have reciprocal agreements with Sweden in relation to pensions. However, Mr Bendovska indicated that he thought that some type of reciprocal pension arrangements were made at some stage, perhaps in in 2006, between Sweden and Australia.
3. In 2008 Mr and Mrs Bendzovska applied for the disability support pension in Australia. This was granted to Mr Bendzovska although he began to receive the age pension when he reached the required age at some point after that time. Mrs Bendzovska's application was unsuccessful and she was advised by letter of this. Despite receiving a letter Mr and Mrs Bendzovska indicated that they were confused about whether or not they had received the pension. This is understandable as Mr Bendzovska had a pension card which had Mrs Bendzovska's name on it and they also began to received medication at a reduced price or for free.
4. In short, in 2008, although Mrs Bendovska had received a letter, both Mr Bendzovska and Mrs Bendzovska thought that they were receiving a pension and therefore did not think that they needed to appeal from the decision that they had received. They simply thought that the letter was wrong and had been superceded by the pension card they received that had both their names on it. In evidence they indicated that they spoke to other members of the Macedonian community and they assumed that Mrs Bendzovska had been granted the pension. It was not until February 2012 when they went to purchase and register a car and sought a reduced price that Mrs Bendzovska realised that she was not getting the pension.
5. As a result of finding out that she was not receiving the pension, on 1 March 2012, Mrs Bendzovska contacted Centrelink about a new claim for a disability support pension. That pension application was successful and disability support pension was paid to her from 1 March 2012.

1. The law that applies in this matter is the Social Security Administration Act 1999 ('the Act'). Information about the Social Security Act and the particular legislation has been provided to the Applicants on previous occasions and was discussed during the hearing.
2. Section 107 of the Act is the most relevant section in terms of this application. The Section states that:

A determination or a decision made by the department takes effect on the day that the decision was made.

1. Section 107(2), which the Department referred to in the Statement of Facts and Contentions effectively says that you must appeal from a decision made about a pension within 13 weeks. If you do not appeal within that time the decision is taken as being made and cannot be appealed against. That section of the Act has been considered a number of times by this Tribunal and also by the Federal Court of Australia. A list of cases where this section has been considered includes:
   • Bosch v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 927
   • Middleton v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 569
   • Du Cros v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 549
   • Cropper v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 446
   • Bagh v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 128
   • Aslimoski v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 361
   • Anderson v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 306
   • McDermott v Dept of Family & Community Services [2005] AATA 135
   • Rajuc v Dept of Family & Community Services [2003] AATA 240
   • Secretary, Dept of Employment and Workplace Relations v Cameron (No 2) (2007) FCR 450
2. These cases have a common theme and approach and this is summarised in the Bagh Case (Bagh v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 128):

The general rule in relation to the payment of social security entitlements is that if a person is qualified for a payment on the date upon which they lodge a written claim for that payment and their claim for the payment is granted, then they are paid the relevant entitlement from that day...Even where a person's claim is rejected, they may still be paid from the date they lodged their claim if they challenge the decision rejecting their claim within 13 weeks of being notified of it, and that challenge is successful. However, where a person seeks a review of a rejection decision more than 13 weeks after being notified of that decision, then any decision granting their claim only takes effect from the date they sought review of the rejection decision.(Tribunal emphasis)

1. In this matter there is no disagreement that there was a notice given of the original decision. And the case law says, regardless of the particular circumstances, section 107 only allows a claim to be backdated where a request for review has been made within 13 weeks. It seems to me that the Applicant has provided some good reasons for not requesting a review of that decision within 13 weeks. It is understandable that the Applicant may have thought that she was receiving the pension as her name appeared on the pension card. It is also particularly difficult for Applicants in the Bendovskas' situation where they do not understand English that well and where the correspondence might be confusing.
2. However, the legislation does not provide for any exceptions to that rule and accordingly the pension cannot be backdated to 2008 by this tribunal. I note, however, that the Applicant may choose to pursue an Act of Grace payment through the Department of Finance scheme and I understand also that the Applicant been given some documentation in relation to pursuing an Act of Grace payment.
3. It seems in this matter that there is a chance there may have been an administrative error made, but I have no information before me and that, no doubt, is going to be a matter for the department. I do note the circumstances of the Applicants in the matters that they have put before me today, however, for the reasons that I have explained they are not entitled to disability support pension from any date earlier than 1 March and accordingly I affirm the decision that was under review.

I certify that the preceding 14 (fourteen paragraphs) are a true copy of the reasons for the decision herein of Professor T Sourdin, Member.

.................[SGD]...................................

Ms Kate Martini, Program Litigation and Review Branch