Agnos and Secretary, Department of Family and Community Services

[2005] AATA 565

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 565

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2004/109

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JAMES AGNOS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member Mary Imlach

Date 10 June 2005

PlaceHobart

Decision The Tribunal affirms the decision under review.

[Sgd Miss Mary Imlach]

Senior Member

CARER ALLOWANCE – start day – acute onset – decision affirmed

Social Security (Administration) Act 1999 - s 11, s 16, s 37, s 41 and s 42

REASONS FOR DECISION

10 June 2005 Senior Member Mary Imlach         

background

1.      On 28 February 2003 James Agnos (“the Applicant”) lodged a claim with Centrelink for payment of Carer Allowance in respect of his son, Paul.

2.      A decision was made by Centrelink on 3 May 2003 (“the decision”) to grant the Applicant Carer Allowance from 28 February 2003 and not earlier and a letter was sent to him to this effect.

3.      The Applicant sought review by an Authorised Review Officer (“ARO”) and on 7 June 2004 the ARO affirmed the decision that the Applicant was entitled to payment from 28 February 2003 and not earlier.  He was not entitled to payment for an earlier period because the health professional’s report, which was completed on 5 March 2003, did not show that there was an “acute event” that had occurred which led to the Applicant providing care for his son.  Further the Applicant did not query the date from which his payments started until more than 13 weeks after the decision was made.

4.      A request for independent review was heard by the Social Security Appeals Tribunal (“SSAT”) on 29 July 2004.  The SSAT affirmed the decision by Centrelink on 3 May 2003 to pay Carer Allowance to the Applicant from 28 February 2003 and not earlier.

5.      The Applicant lodged an application for review by the Administrative Appeals Tribunal (“the Tribunal”) on 30 August 2004.

appearances

6.      The Applicant attended the hearing and represented himself.  Ms M Baulch appeared on behalf of the Secretary, Department of Family and Community Services (“the Respondent”).

issue

7.      The issue in this matter is from what date should the Applicant be paid Carer Allowance in respect of his son, Paul.

legislation

8.      The relevant legislation is found in the Social Security (Administration) Act 1999 (“the Administration Act”) s 11, s 16, s 37, s 41 and s 42.

applicant’s case

9.      The Applicant told the Tribunal that his family had suffered a great deal in relation to his son’s psychiatric condition.  It appeared from what the Applicant said that he believed the expression “acute onset” to relate to suffering and the fact that his son was not well.

10.     The Applicant said that no one had told him earlier that he was qualified to receive Carer Allowance and that he could not claim an allowance if he did not know it existed.  His son had been in hospital for an extended period in 2001.  The hospital social worker had helped him claim sickness benefit for his son but had never mentioned Carer Allowance.

11.     The Applicant said he wanted justice as he felt that the matter had not been handled in a fair way, as no one had told him he was entitled to claim and yet Centrelink is able to go back and raise debts if there has been an overpayment.

respondent’s contentions

12.     The Respondent contended that as the Applicant had not made a claim for Carer Allowance before 28 February 2003, he could not be paid arrears going back to 2001, the date on which his son had been diagnosed with schizophrenia.

13. The Respondent referred to s 42 of the Administration Act which states that the start date of the payment is worked out according to Schedule 2 of the Administration Act. Schedule 2 provides that, as a general rule, set out in cl 3 (1) a person’s payment starts on the day they claimed the payment.

14.     Clause 17, however, has an additional provision in the case of Carer Allowance paid to the carer of a disabled adult.  In this case, where the disability was due to an acute onset, there is provision that the payment can be backdated for a maximum of 26 weeks before the date the claimant lodged a claim for Carer Allowance.  The Respondent contended that the medical evidence provided and the evidence given by the Applicant at the hearing showed that Paul Agnos’ disability did not have an acute onset.

discussion of the evidence and findings on material facts

15.     The specialist treating Paul Agnos, Dr Milford McArthur in the Health Professional Assessment dated 5 March 2003 stated that Paul had suffered from schizophrenia for more than six months and that his need for care was not due to an acute event.

16.     Dr McArthur advised further on 16 June 2004 that Paul Agnos had been admitted to the RHH on 1 October 2001 “after several months of deteriorating mental state with schizophrenia”.

17.     Dr Michael McCarthy in a letter dated 29 June 2004 advised that Paul Agnos had been diagnosed with schizophrenia formally in October 2001.  Dr McCarthy also stated that Paul Agnos had been eligible to apply for a disability pension since 2001 and that his father, the Applicant had been eligible to apply for a carer’s pension since October 2001.

18.     The Applicant in his evidence stated that “it took about 12 months for us to manage to take Paul to be assessed at the hospital.  That was back in 2001 in October sometime.  I don’t know the exact date”.

19.     A medical report dated 27 November 2001 by Professor Saxby Pridmore, Psychiatrist in charge at Psychiatric Intensive Care, indicated that Paul had experienced “behavioural changes over past 4-5 months”.

20.     There was also before the Tribunal further evidence submitted by the Applicant after the hearing, to which the Respondent has not objected, from Dr Michael McCarthy dated 10 May 2005 and from Dr Milford McArthur dated 11 May 2005.

decision

21. The relevant law is contained in the Administration Act. Section 16 of the Administration Act states that a person must make a claim in the approved form. The Applicant made his claim on 28 February 2003.

22. Section 37 (1) of the Administration Act provides that payment must be made if a person is qualified and the payment payable. Section 41 of the Administration Act says that a payment becomes payable on the person’s start day. Section 42 states 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.

23.     There is provision, however, in cl 17 for the case of a carer of a disabled adult that where the disability was due to an acute onset of the disease, the payment of the Carer Allowance can be backdated for a maximum of 26 weeks before the date the claim was lodged.

24.     The Tribunal finds on the basis of the medical evidence before it and the evidence from the Applicant himself, that whilst Paul’s care needs commenced from early October 2001, there had been a gradual deterioration in his health prior to his admission to hospital.  There is no evidence before the Tribunal that the onset of Paul’s condition was rapid or over a short period of time.  On the contrary, the Applicant himself stated that it was over a period of twelve months.

25.     The condition itself which Paul suffered may well be described as “acute” meaning coming to a crisis and as Dr McCarthy observed in his letter of 10 May 2005:

“You would be hard pressed to find a more acute case than this one!”

But that is not describing the onset of the condition as the term is used in Schedule 2 cl 17 (2) of the Administration Act, but rather the severity of Paul’s condition.

26.     The provision in cl 17 of the Schedule, therefore, does not apply in this case and the payment of a Carer Allowance to the Applicant must be his start day which in this case, was the date of the claim on 28 February 2003.

27.     The Tribunal affirms the decision under review.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Mary Imlach

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  10 May 2005
Date of Decision  10 June 2005
Counsel for the Applicant          
Solicitor for the Applicant          Applicant appeared on his own behalf
Counsel for the Respondent     Ms M Baulch
Solicitor for the Respondent     Centrelink