ABDELLAH MAOUCH and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 553

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 553

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5236

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ABDELLAH MAOUCH

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member M D Allen

Date23 June 2009

PlaceSydney

Decision For the reasons given orally at the conclusion of the Hearing of this matter on 23 June 2009, the decision under review is AFFIRMED.

....................[sgd]....................

M D Allen

Senior Member

CATCHWORDS

SOCIAL SECURITY: Whether Applicant entitled to one off carer payment - had received carer payment in respect of child - Applicant outside of Australia for a period of time – child subject of payment exceeded total respite days allowed per calendar year - Applicant no longer entitled to carer payment after a particular period and therefore not entitled to one-off payment - decision under review affirmed.

LEGISLATION

Social Security Act 1991: S 198AC

REASONS FOR DECISION

23 June 2009 Senior Member M D Allen

1. At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and the Respondent of a copy of the decision that was in fact made, the Applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act (1975), requested the Tribunal to furnish to them a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision,

3.      The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reason for the Tribunal’s decision.

I certify that the following paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:         ............................[sgd]...................................................
  M. Corcoran, Associate

Date of Hearing  23 June 2009
Date of Decision  23 June 2009
Solicitor for the Applicant          Appeared in person
Solicitor for the Respondent     Ms S. Mantaring, Centrelink Legal Services

EXTRACT OF TRANSCRIPT OF PROCEEDINGS  [10.27am]

In this matter the Applicant, pursuant to an application made the 6^th day of November 2008, seeks review of a decision by a Social Security Appeals Tribunal, made 14 October 2008. That decision basically stated that the Applicant was not entitled to receive carer payment after 28 April 2008 and, as a result, was not entitled to a one-off payment to carers which was announced in the Budget on 13 May 2008. The applicant has been receiving carer payment in respect of his daughter, Thiziree, since 10 December 2004.

On 3 November 2007, the daughter left Australia, returning on 23 January 2008. However, the calculation of time out of Australia is done on an annual basis. So, at that stated there were 22 days credited against a maximum of 63 days during which the Applicant was entitled to the payment of carer payment, although he was not, at the time, caring for the subject of the payment, the period of grace being referred to generally as respite care.

On 14 March 2008, the Applicant contacted Centrelink at Gosford and informed that that he was going overseas. There is some dispute as to what was told to him at that date. The Applicant says that he was told that because of the previous time his daughter had spent out of his care, his entitlement to carer payment would cease on 24 May 2008. He realised that he would not return to Australia before the expiration of that period, but it was only a short period for which he would not receive payment. In fact, he returned to Australia on 17 June.

The difficulty in this matter is that, at document T7 page 18, is a copy of a letter forwarded to the Applicant by Centrelink, which states quite clearly:

“The information you provided shows that you can receive carer payment until 4 May 2008. If you are outside Australia on 4 May 2008, your carer payment will stop.”

The Applicant, for his part, says that he has never received that letter. I note that if he had departed Australia on 18 March 2008, there is a strong probability that the letter would not have been received by him personally, although it was posted to his last known address for service at 13 Canea Crescent, Allambie Heights, which was the address then known to Centrelink and, as I understand it, is still the Applicant’s address. He said that any mail received was collected by his wife and placed separately for his attention when he returned home. Furthermore, I am satisfied that there was a letter which was sent to his place of address.

A further letter was sent to him, dated 29 March 2008, which said, inter alia:

“Your carer payment has been cancelled because the person you are caring for has exceeded the 63 days respite allowed per calendar year.”

That letter was also sent to the address known to the Department and, again, the Applicant says he did not receive that letter.

The simple facts now are that the Applicant, pursuant to the provisions of section 198AC of the Social Security Act 1991, had his carer payment cancelled with effect from 4 May. As he was not in receipt of carer payment as at 13 May 2008, he was not entitled to the one-off carer payment bonus announced by the government in the budget that night.

I cannot explain why the Applicant did not receive the correspondences. Suffice it to say, however, that the application of the law is quite clear. If he exceeded the 63 days, he was no longer entitled to the payment and that is it. As he was not in receipt of payment, he was not entitled to the bonus, and the decision under review must be affirmed.

If the Applicant has any dispute with the Department, it seems to me that it is a matter he should take up with the Ombudsman, because I can only apply the law, and the law in this matter is quite clear.

END OF EXTRACT  [10.37am]