Abberton and Secretary, Department of Social Services (Social services second review)

[2021] AATA 2771

Abberton and Secretary, Department of Social Services (Social services second review) [2021] AATA 2771 (10 August 2021)

Division:General Division

File Number(s):2020/3577  

Re:KAY ABBERTON  

APPLICANT

SECRETARY, DEPARTMENT OF SOCIAL SERVICESAnd  

RESPONDENT

DECISION

Tribunal:Senior Member P J Clauson AM

Date:10 August 2021

Place:Brisbane

The decision under review is affirmed.

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

Senior Member P J Clauson AM

Catchwords

SOCIAL SECURITY – Hearing on papers by consent – Cancellation of carer payment and carer allowance – Where applicant given notice under section 68 of the Administration Act – Where payments cancelled under section 81 of the Administration Act for non-compliance with notice – Whether the Department was correct to cancel the applicant’s carer payment and carer allowance – (CTH) Social Security Administration Act1999 ss 68, 72, 81 – Decision under review affirmed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act1991 (Cth)
Social Security Administration Act1999 (Cth)

REASONS FOR DECISION

Senior Member P J Clauson AM

INTRODUCTION

1. The applicant in this matter is Kay Abberton, who provides care for her husband, Graeme Anderson. It is uncontroversial that the applicant was in receipt of both carer payment and carer allowance on the basis that she provided constant care and attention to Mr Anderson.

2. On 29 January 2020, the applicant’s carer payment and carer allowance were cancelled by the Department of Human Services, now known as Services Australia (the Department). On 5 May 2020, a Review Decision was made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) affirming the decision. The applicant has sought this review of that decision.

3. By agreement of the parties in accordance with s 34J of the Administrative Appeals Tribunal Act 1975, this matter was decided on the material lodged with the Tribunal without holding a hearing.

   ISSUES

4. The only issue to be decided upon in this Review Application is whether the Department was correct in its decision to cancel the applicant’s carer payment and carer allowance.

   LEGISLATIVE FRAMEWORK

5. The relevant legislation is contained in:

   (a)Social Security Act1991 (the Act);

   (b)Social Security Administration Act1999 (the Administration Act).

6. The policy advice relevant to this area is contained in the Guide to Social Security Law (the Guide). Although the Guide is not binding on the Tribunal’s discretionary powers, it is appropriate to follow the principles therein wherever appropriate to attempt to ensure consistency in decision making. Departure from the policy should only occur if cogent reasons exist so to do.[1]

   [1] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634.

   FACTS AND BACKGROUND

7. The Department issued the applicant a Notice on 4 December 2019 advising it was commencing a review into the applicant’s eligibility to continue receiving carer allowance in relation to the care provided to Graeme Anderson.

8. Accompanying that Notice were two forms, namely:

   (a)Review of Care Provided Form for the applicant to complete;[2]

   (b)Health Professional Assessment Form for Mr Anderson’s health professional to complete.[3]

   [2] Respondent’s Statement of Facts, Issues and Contentions, Attachment “A”.

   [3] Respondent’s Statement of Facts, Issues and Contentions, Attachment “B”.

9. Both forms were required to be completed and returned to the Department within twenty‑one (21) days.[4]

   [4] T Documents, T11, pp 57-58.

10. The Department sent a further Reminder Notice to the applicant on 2 January 2020 which stated: [5]

    “Our records show that we have not received the forms we sent you asking for information.

    Please complete and return the form within 21 days of receiving this letter or your payments and your eligibility for a healthcare card may stop.”

    [5] T Documents, T11, pp 59-60.

11. The Department cancelled the applicant’s carer payment and carer allowance on 29 January 2020 on the basis that she did not respond to information requests issued by the Department.[6]

    [6] T Documents, T11, pp 61-62.

12. An Authorised Review Officer (ARO), on 6 March 2020, reviewed and affirmed the decision to cancel the applicant’s carer payment and carer allowance on the basis that the applicant had failed to respond to the information requests.[7]

    [7] T Documents, T6, pp 28-33.

13. The applicant then sought a further review and on 5 May 2020 the AAT1 affirmed the decision under review.[8]

    [8] T Documents, T2, pp 4-6.

14. The applicant again sought a further review of the Social Security and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) on 2 June 2020.[9]

    [9] T Documents, T1, pp 1-3.

    THE PARTIES’ CONTENTIONS

15. The respondent contends that the general rules to qualify for carer payment and carer allowance are set out in sections 198 and 954 of the Act respectively. The Secretary contended that this matter does not relate to the applicant’s qualification for carer payment and carer allowance, but rather the applicant’s failure to respond to information requests issued by the Department.

16. The respondent contends that section 68(2)(b) of the Administration Act provides that a person may be given notice that requires them to tell the Secretary about specified events or changes in circumstances.

17. Section 72 of the Administration Act provides, amongst other things, that a Notice under section 68 of the Administration Act must specify a time period in which, or a date by which, the person has to the person has to provide the information requested in accordance with section 68.

18. Section 81 of the Administration Act provides the Secretary the power to cancel or suspend a person’s social security payment where they have been issued with a Notice under section 68 and the person fails to comply with that Notice.

19. The Secretary contends further that the Department regularly undertakes reviews into the ongoing eligibility of recipients of social security payments. On 4 December 2019 and 2 January 2020, the Department issued the applicant Notices advising her that it was undertaking this standard review process. The Department issued the Applicant the last and final notice on the 20 January 2020 advising her that they had not received the forms as requested and that they required to receive them within 21 days of receiving the letter and that if they did not receive the forms the Applicant’s payments and eligibility for a Health Care Card may be stopped. The Secretary further contends that the Notices attached two forms, being the Review of Care Provided Form, to be completed by the applicant, and a Health Professional Assessment Form, to be completed by Mr Anderson’s health professional. The Secretary contends that both forms stipulated that they be returned to the Department within twenty-one (21) days of receiving the Notice and the Secretary further contends that the Notices and the Review Forms were Notices issued under section 68(2) of the Administration Act.

20. The Secretary also contended that the Notices were in writing and specified a period within which the applicant was to give the information or statements, being a period of twenty-one (21) days from the date of the Notice and, as such, satisfied the requirements of sections 72(1), (2) and (3)(d). It is noted that the Secretary is empowered to issue such a Notice to a person pursuant to section 68(2) of the Administration Act and that such Notice requires the party issued with the Notice to give “one or more statements about a matter that might affect the payment to the person of the social security payment”. The Secretary further contends that the Notices and Review Forms in this matter required the applicant to give statements about various matters which the Secretary contended might have affected the payment of carer payment and carer allowance to the applicant.

21. The Secretary contends that the applicant failed to comply with the requirements of the Notice of Review Forms and that the applicant does not dispute that she received and did not respond to both Notices issued. The Secretary has drawn the attention of this Tribunal to the decision by the AAT1 which noted:

    “Ms Abberton acknowledged receiving the letters from Centrelink dated 4 December 2019 and 2 January 2020. She told the Tribunal that she did not respond as requested because she believed Centrelink had adequate information and her husband no longer has a treating doctor.”[10]

    [10] T Documents, T2, p 5.

22. Because the applicant had twenty-one days (21) from the Notice issued on 2 January 2020 to comply with the requirements of that Notice, it was contended by the Secretary that when the applicant had not complied with the requirement of the Notice or Review Forms by 23 January 2020 that the Department correctly cancelled the applicant’s carer payment and carer allowance pursuant to section 81(1) of the Administration Act. The applicant’s Application for Review stated in an accompanying annexure prepared by Mr Anderson, upon which he describes himself as Ms Kay Abberton’s representative, and which annexure is signed by both Mr Anderson and Ms Abberton, that in summary:

    (a)The Department was perceiving Ms Abberton to have “wilfully and deliberately disobeyed a Centrelink directive to have a “Carer Medical Review”, Form SA332a completed and returned”, which was denied;

    (b)That asking a medical practitioner to complete the form could be construed as illegally attempting to coerce the practitioner who would have little or not knowledge of the patient to falsify the paperwork or guess at the condition of the party being examined;

    (c)That no contemporary medical files exit in relation to Mr Anderson’s condition; and

    (d)That he has not engaged with treating health professionals since 2017 as nothing effective could be done for him and that the AAT in 2011 determined that Ms Abberton was qualified to be his carer under the legislation at that time and that no further review was necessary.[11]

    [11] T Documents, T1, pp 1-3.

23. The applicant’s Statement of Issues, Facts and Contentions also puts the contention that the decision to grant Ms Abberton carer allowance and carer payments by the AAT in 2011 was final and that no further reviews could be made. The applicant contends that the Department’s requirements to complete the forms had no “eligibility or entitlement” to make this demand.

    CONSIDERATION

24. The Tribunal considers that the matter for review before the Tribunal is not whether the applicant was qualified to receive carer allowance or carer payment, but whether the applicant had failed to respond to information requests made by the Department.

25. The Tribunal considered the legislation relative to the question:

    “Is the Department entitled to such information from a recipient or carer allowance and carer payment in the circumstances as they apply to the applicant in this matter?”

26. It is clear to the Tribunal that section 68(2) is clear on this reading to be the empowering section of the Administration Act, allowing such an enquiry to be authorised. The Secretary has acted to make such an authorised enquiry of the applicant who has chosen to ignore that request and a subsequent Reminder Notice dated 2 January 2020. It is to be noted that the applicant is not compelled to make a response to the Enquiry Notice but, however, must be prepared to accept any consequences flowing from that decision of choice. In the applicant’s case, the cessation of payment to her of carer allowance and carer payment.

27. There are sound policy considerations for such bureaucratic powers of enquiry to be legislated where the payment of public funds are expended upon individuals so as to ensure that the appropriate benefits are paid and that the party receiving such benefits is qualified so to do. Also, the purpose of the medical enquiry of the carer received as treating health professional in such circumstances is necessary to establish if that party’s condition continues to warrant the level of care being provided.

28. In this matter, the applicant has considered, and has indeed asserted, that because Mr Anderson’s condition has not improved and in fact, in her opinion, perhaps become worse, that the information on his medical condition held by Services Australia is adequate and does not require updating.

29. It is clear that the applicant, in her evidence to the AAT1, has contended that in addition to Mr Anderson’s unchanged or worsening state, he has not engaged with a treating health professional since 2017 because there’s “nothing that can be done” and that Mr Anderson’s treating doctor said he was “tired of dealing with Centrelink”.[12]

    [12] T Documents, T2, p 5.

30. A consideration of the evidence before this Tribunal does not reveal that any recent medical evidence has been forthcoming and both the applicant and Mr Anderson have indicated a resistance to seeking such updated medical information based upon the assertions that it is unnecessary since the AAT decision of 2011 in which they assert the statement was made by that Tribunal that no further review would be required to be undertaken.

31. This Tribunal has not that decision before it, but only the legislation under which the request to provide updated medical information was made. The request from the Secretary, in the view of the Tribunal, is also compliant with the statutory requirements of sections 72(1), (2) and (3)(d) of the Administration Act to specify a time or date within which or by the party is required to supply the requested material.

32. The failure by a party requested for information to supply updated medical information necessarily affects the ability of the Department to make an assessment, based on the medical reports, of the scores necessarily required to qualify a person for carer allowance and carer payment.

33. The Tribunal acknowledges that the applicant is of the view that the care receiver’s condition is either the same or has perhaps worsened. The legal requirements for carer’s allowance and carer’s payment, however, must nonetheless be met. Here, the lawful request has been made with a not unreasonable time defined for compliance and the applicant has chosen to not comply therewith. Because failure to comply with such a request can bring as a consequence cancellation of benefits, section 81(1) of the Administration Act has been invoked and the applicant’s carer’s allowance and carer’s payment have been cancelled.

34. The Tribunal acknowledges the burden of care necessary in circumstances such as those endured by the applicant and her husband and the financial and other pressures they face. The Tribunal also accepts the loss of financial support would have a most heavy impact upon them also. The legislation does not allow for, or take into account, such external other contentions as those agitated by the applicant in support of her circumstances when her non-compliance with a statutory request for information has been made. Therefore, the Tribunal considers that the respondent has made a reasonable and legitimate request under the legislation for the information sought and has provided a reasonable time limit for the applicant within which to respond. The applicant has chosen not to accede to the respondent’s request reasonably made and accordingly, in the circumstances, the respondent has exercised its discretion under section 81(1) of the Administration Act to cancel the applicant’s carer’s allowance and carer’s payment.

35. The Tribunal considers that the respondent has acted within the law and has chosen to cancel both the carer’s payment and carer’s allowance as a consequence of the applicant’s non-compliance.

36. The decision under review is therefore affirmed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM

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Associate

Dated: 10 August 2021

Date(s) of hearing:	On the Papers
Date final submissions received:	20 January 2021
Advocate for the Applicant:	Mr Graeme Anderson
Solicitors for the Respondent:	Services Australia