Gluhin and Department of Family and Community Services [2001] AATA 43 (25 January 2001)

Last Updated: 31 January 2001

DECISION AND REASONS FOR DECISION [2001] AATA 43

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q00/351

GENERAL ADMINISTRATIVE DIVISION )

Re GREGORY GLUHIN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date 25 January 2001

Place Brisbane

Decision The Tribunal varies the decision under review by accepting the claim for disability support pension lodged on 27 November 1997 on the basis that Mr Gluhin was medically eligible as at that date. The Tribunal affirms the decision under review insofar as it relates to the date of effect as being 26 May 1999 as that date is the earliest possible date of effect.

(Sgd) DP BREEN

PRESIDENTIAL MEMBER

CATCHWORDS

SOCIAL SECURITY - disability support pension - appropriate date of effect.

Social Security Act 1991 ss 115

REASONS FOR DECISION

25 January 2001 Deputy President DP Breen, Presidential Member

1. This is an appeal against a decision of the Social Security Appeals Tribunal dated 15 March 2000 which affirmed a decision of an Authorised Review Officer to reject a claim for disability support pension lodged on 27 November 1997 and to reject the claim that disability support pension is payable from a date earlier than 26 May 1999.

2. The matter was heard before me at Southport on 3 October 2000. Written submissions on the law were received from the respondent on 29 December 2000. Mr Gregory Gluhin, the applicant, represented himself. Mr P Kanowski, Departmental Advocate, represented the respondent.

3. Mr Gluhin gave oral evidence at the hearing and the following documents were also taken into evidence:

* Exhibit 1 "T" Documents

* Exhibit 2 Medical Certificate dated 20.4.00

4. Mr Gluhin suffers from Motor Neurone Disease. In November 1997 Mr Gluhin lodged a claim for disability support pension. On 23 December 1997 that claim was rejected and the decision was sent to Mr Gluhin with a letter clearly explaining his appeal rights.

5. On 18 March 1998 Mr Gluhin requested a reconsideration of the original decision. This reconsideration took place and on 30 March 1998 the delegate affirmed the earlier decision and sent Mr Gluhin a copy of the decision and a letter outlining his further appeal rights. This letter was written very clearly so it could be understood by lay people. There is also a clear warning that any review process should be commenced within three months of being notified of a decision, otherwise payment will only be back-dated to the date the review was requested.

6. In May 1999 Mr Gluhin lodged a second claim for disability support pension and this claim was accepted with pension being paid from 26 May 1999. On 29 September 1999 Mr Gluhin advised Centrelink that he wished to seek back-payment of the pension and on 20 December 1999 he again requested a review of the date of effect for the pension.

7. The matter was referred to an Authorised Review Officer and on 24 February 2000 Mr Gluhin was informed that the earlier decision was affirmed on the grounds that he had not medically qualified in November 1997. That day, Mr Gluhin sought review of the decision by the Social Security Appeals Tribunal which affirmed the decision on 15 March 2000.

8. At the hearing by this Tribunal, Mr Gluhin produced a Medical Certificate from Dr MH Williams, a Consultant Physician (Neurology) at the Gold Coast Hospital. His opinion was as follows:

"This is to certify that Mr Gregory Gluhin suffers from motor neurone disease and has done so for some years......

Finally, it is my opinion that Mr Gluhin has had symptomatic motor neurone disease possibly for three or four years and has been incorrectly diagnosed over that period of time. Also I think it is highly likely that he has been unfit for work during that period."

9. Motor neurone disease is an insidious disease which many doctors are reluctant to diagnose in its early stages. It is usually only after the disease has progressed that a firm diagnosis will be made and earlier symptoms can be confirmed as being attributable to the disease.

10. It is the Tribunal's view, on this medical evidence, that Mr Gluhin was medically eligible for the disability support pension in November 1997 as the earlier diagnosis was incorrect.

11. The real issue before the Tribunal is whether payment of the pension can be back-dated to the date of the claim.

12. Section 115 of the Social Security Act 1991 provides for the date of effect from which pension is payable.

"(1) Subject to subsections (2), (3) and (4), a determination under section 114 takes effect on the day on which the determination is made or on such later day or earlier day as is specified in the determination.

(2) If:

(a) a decision (in this subsection called the previous decision) is made rejecting a person's claim for disability support pension; and

(b) a notice is given to the person advising the person of the making of the previous decision; and

(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and

(d) a determination granting the claim is made as a result of the application for review;

the determination takes effect on the day on which the previous decision took effect.

(3) If:

(a) a decision (in this subsection called the previous decision) is made rejecting a person's claim for disability support pension; and

(b) a notice is given to the person advising the person of the making of the previous decision; and

(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and

(d) a determination granting the claim is made as a result of the application for review;

the determination takes effect on the day on which the person sought the review."

13. There is no discretion in the Social Security Act allowing for that three month period to be extended.

14. As such, while Section 115 does not preclude review being sought outside of the three month period, it imposes a restriction on the ability to back-pay the entitlement. This legislation is beneficial legislation and is designed to encourage people to exercise their appeal rights but it is also framed to encourage people to exercise such rights expediently.

15. Therefore, while Mr Gluhin's claim which was lodged on 27 November 1997 is successful, because of his delay in appealing the decision of the delegate in March 1998 the legislation dictates that the earliest date of payment is 29 September 1999. As Mr Gluhin was already in receipt of the disability support pension from 26 May 1999, this decision is of no practical effect and he cannot receive any back-pay as a result of this claim.

16. The Tribunal varies the decision under review by accepting the claim for disability support pension lodged on 27 November 1997 on the basis that Mr Gluhin was medically eligible as at that date. The Tribunal affirms the decision under review insofar as it relates to the date of effect as being 26 May 1999 as that date is the earliest possible date of effect.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member

Signed: Denise Burton

Secretary

Date/s of Hearing 3.10.00

Written Submissions 29.12.00

Date of Decision 25.1.01

Rep. for the Applicant Applicant appeared in person

Solicitor for the Respondent Mr P Kanowski, Departmental Advocate