Cropper and Secretary, Department of Families, Housing, Community Services... [2012] AATA 446 | Case summary

Judgment (11 paragraphs)

[1]

The applicant elected not to give evidence and asked for his application to be decided on the basis of the evidence before me.
For the applicant to be granted DSP in 2008 he would have then had to have met the requirements of s 94(1) of the Act. That subsection provides that a person is qualified for disability support pension if that person has a physical, intellectual or psychiatric impairment; and the person's impairment is of 20 or more points under the Impairment Tables;[2] and the person has a continuing inability to work (or participated in the supported wages system, which is not the case). All of these requirements must have been satisfied at the time the claim was lodged, or within a period of 13 weeks after lodgement,[3] before DSP could have been granted to the claimant.
I am satisfied that in 2008 the applicant had an impairment within the meaning of s 94(1)(a) of the Act, the impairment being a contracture condition of his right hand.
I do not find that in 2008 the impairment of the applicant was 20 or more points under the Impairment Tables in accordance with s 94(1)(b) of the Act. In August 2008, the applicant had undergone surgery for a right hand contracture condition. The plastic surgery registrar at the Mater Hospital, Brisbane, reported upon the condition of the applicant on 3 December 2008. In her report she concluded that the then impact on the patient's ability to function was expected to persist for less than 3 months and that the condition would significantly improve within the next 2 years. She also mentioned in her report that the patient would have "on-going hand therapy". In these circumstances, while the contracture condition could be regarded as being fully diagnosed, it could not be regarded as being fully treated and stabilised. I therefore conclude that the contracture condition of the right hand could not then have been assigned a rating under the Impairment Tables.
The applicant has other conditions, such as chronic pain in his right hand and reduced range in his right shoulder. The plastic surgery registrar at the Mater Hospital, in her report of 3 December 2008, does not report upon these conditions. However, in a later report of 19 August 2009 the treating doctor at the Mater Hospital had reported that both of these conditions were likely to show considerable improvement within two years. In these circumstances these conditions could not then be assigned a rating as they had not stabilised.

I have considered the application of s 107(3) of the Administration Act to the case of the applicant. On 16 January 2009, the applicant was sent a letter informing him of the original decision to reject his claim for DSP. This letter would, in my view, be a notice under s 107(3)(b) of the Act. There is no evidence that the applicant requested a review of the original decision within 13 weeks after the notice was given. The respondent has quite properly submitted that his request for review of the original decision was made on 14 March 2011; this was when the applicant contacted Centrelink to seek payment from 2008 on the basis that his condition was no worse in 2011 than it was in 2008. As his contact on 14 March 2011 is a request, it was made after the applicant was granted DSP. The operation of s 107(3), which provides that the determination takes effect when the application for review is made, has the consequence for the applicant that even if a determination was made to grant the 2008 claim for DSP, the determination could only take effect from the date when an application for review was made, that being 14 March 2011. As he had already been granted DSP with effect from 29 October 2010, such a determination would be futile.
I have considered whether the applicant had any entitlement to be paid DSP at any date earlier than 29 October 2010. This issue requires the consideration of what is known as the "start day" rules. Subsection 41(1) of the Administration Act provides that "[u]nless 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". Section 42 of the Administration Act provides that "for the purposes of the social security law, a person's start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2". Ordinarily, under cl 3(1) of Schedule 2 a person's start day will be the day on when a claim is made. However, s 13 of the Administration Act provides for deemed claims in certain circumstances where the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim and the person then lodges a claim for the social security payment within 14 days after they had contacted the Department. In those circumstances the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
Under ss 41 and 42 of the Administration Act and cl 3(1) of Schedule 2, the start date of payment for DSP is the date on which the claim was made, which was 5 November 2010. However, s 13 of the Administration Act provides that the applicant is deemed to have made the claim on 29 October 2010; this is because the date that he lodged the claim, 5 November 2010, was within 14 days from the date when he had contact with Centrelink, on 29 October 2010, about claiming DSP.
For the sake of completeness I have considered whether DSP could have been paid at an earlier date under any other provision of the social security law. I have concluded that s 15(4) of the Administration Act would not enable the claim to be "backdated" to when the applicant first claimed newstart allowance. This is because on that date, 22 January 2009, I cannot be satisfied that the applicant was qualified for DSP in accordance with s 15(4)(b) of that Act as a medical report from the Mater Hospital after that date, on 19 August 2009, contains a statement that the applicant was then capable of employment.
I consider that the applicant cannot be paid DSP any earlier than 29 October 2010. There are no provisions in either the Act or the Administration Act which allow for an earlier date of payment.
At the conclusion of the hearing I gave the applicant 7 days to make any further submission or submit further evidence: no submission or further evidence was made by the applicant within this time.

Cropper and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 446 (16 July 2012)

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Judgment (11 paragraphs)

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Cropper and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 446 (16 July 2012)