Kruse and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 738 (25 October 2012)

Last Updated: 26 October 2012

[2012] AATA 738

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/0763
Re	Pia Kruse
	APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
	RESPONDENT

DECISION

Tribunal	Ms N Bell, Senior Member
Date	25 October 2012
Place	Sydney

The Tribunal affirms the decision under review

......[Sgd]..................................................................
Ms N Bell, Senior Member

CATCHWORDS

SOCIAL SECURITY – Newstart allowance – disability support pension – deemed claim – incorrect or inappropriate claims – whether applicant made correct claim when qualified for another more appropriate social security payment – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 12(2)

Social Security (Administration) Act 1999 (Cth) ss 11, 12, 15(4A), 16, 41, 42, Schedule 2

CASES

Foster; Secretary, Department of Employment and Workplace Relations [2006] AATA 620

Secretary, Department of Social Security v Cooper (1990) 26 FCR 13

SECONDARY MATERIALS

Guide to the Social Security Law

REASONS FOR DECISION

Ms N Bell, Senior Member

25 October 2012

1. Pia Kruse was granted disability support pension from 22 February 2011, having been in receipt of sole parent pension or parenting payment single from 1991 to 2007 and newstart allowance from 2007, with earnings declared by Ms Kruse from her employment as a teacher. Ms Kruse had been diagnosed with a chronic condition in 1983.
2. Ms Kruse requested that disability support pension payments be backdated to 1983, although she had not claimed the pension until February 2011. She maintained she had struggled on the lower payment and her condition warranted the pension. An authorised review officer applied section 12(2) of the Social Security Act 1991 to treat Ms Kruse as a transferee from one payment to another and backdated her pension payment for the maximum 13 weeks to commence on 24 November 2010. The Social Security Appeals Tribunal affirmed the decision.
3. There is no dispute that Ms Kruse qualified for disability support pension when she claimed it. There is also no dispute that she suffers from a chronic condition and that she would likely have been assessed as having 20 points under the Impairment Tables (one of the requirements for eligibility for the pension) prior to 24 November 2010.
4. The only issue for me to consider is whether Ms Kruse should have been paid disability support pension from a date earlier than 24 November 2010.

SHOULD THE PENSION BE PAID PRIOR TO 24 NOVEMBER 2010?

5. The starting point is that payment of pension usually commences at the time a person makes a claim for pension, provided the person qualifies and the pension is, by reference to assets and other income, payable ( sections 11, 16, 41, 42 and Schedule 2 of the Social Security (Administration) Act 1999).
6. There are two ways that are relevant to Ms Kruse’s circumstances in which payment could commence at a time significantly earlier than the time at which she claimed the pension.
7. Section 12 of the Administration Act provides for a person to be paid up to 13 weeks prior to the date of the person’s claim if the person became qualified for the new payment (disability support pension) at a time when the person was receiving another payment (Newstart allowance). In Ms Kruse’s case, this section can apply – and was applied by the authorised review officer to backdate her payment of pension to 24 November 2010.
8. Section 15(4A) of the Administration Act provides for an initial claim for one payment to be treated as a claim for another, more appropriate payment. The later claimed more appropriate payment can be given the start date of the earlier payment and any difference can be paid as arrears.
9. The Guide to the Social Security Law notes a history of “discrepancies” between the way in which “inappropriate claims” and “incorrect claims” have been administered and provides, among other things, the following:

The person must have been qualified to receive the later payment at the time that he or she claimed the later payment.
...In order for payments to be backdated, delegates must consider whether all qualifications for the second (later) payment are met throughout the period of time between the initial and later claims.

10. There is no dispute that Ms Kruse made the following initial claims prior to her claim for disability support pension:
    • a claim for Newstart allowance on 24 January 2007; and
    • a claim for parenting payment on 8 September 2003.
11. Although, it is likely that Ms Kruse had long met one of the requirements for disability support pension by having a condition that attracted 20 points or more under the Impairment Tables, she did not meet the requirement that she have a continuing inability to work until 2008. A continuing inability to work is defined, effectively and among other things, as an inability to work for more than 15 hours per week. Admirably, Ms Kruse had been employed by the Department of Education as a teacher since 2004, despite her chronic condition. Centrelink records show that she worked 96 days in the 2008 203 day school year. It was only in 2008 when she had a fall at work and injured her leg, that she was unable to continue to work. In this way, Ms Kruse did not meet the requirements for eligibility for disability support pension throughout the period of time between the initial and later claims.
12. As he should, Mr Larcombe for the Secretary raised the issue of whether the Newstart continuation forms lodged by Ms Kruse after the date she commenced to have a continuing inability to work might amount to an initial claim within the meaning of the Act. I accept his submission that they do not. In reaching this conclusion I follow the decision of the Tribunal in Foster; Secretary, Department of Employment and Workplace Relations [2006] AATA 620 in that, unlike the particularly significant review form in Secretary, Department of Social Security v Cooper (1990) 26 FCR 13 which, in those circumstances was akin to a claim, the fortnightly continuation forms lodged by Ms Kruse were not in the nature of a claim.
13. I note that a search was conducted of Ms Kruse’s Centrelink records to ascertain whether she had notified Centrelink of her chronic condition at any date earlier than February 2011 and no such records were found.
14. For these reasons section 15(4A) does not apply to alter the start date for payment of disability support pension to Ms Kruse.
15. Finally, and although it has no bearing in law on the issue to be decided, I wish to acknowledge the struggle Ms Kruse had for many years, as a single mother, burdened by a serious chronic condition. Although an extremely difficult experience for her, it has been an extraordinary success. She obtained qualifications as a teacher and secured a significant amount of work in schools, achieving some independence from the income support system. Her son is now in his final year of University study, largely supported by the scholarships he has earned. She is to be admired for her achievements through adversity.

DECISION

16. The Tribunal affirms the decision under review.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member N Bell.

.....[Sgd]...................................................................
Associate

Dated 25 October 2012

Date of hearing	17 September 2012
Date final submissions received	15 October 2012
Applicant	In person
Solicitors for the Respondent	Mr J Larcombe, Centrelink Program Litigation & Review Branch