Armstrong and Secretary, Department of Families, Community Services and Indigenous Affairs

[2006] AATA 928

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 928

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2004/352

GENERAL ADMINISTRATIVE DIVISION		)
Re		YVONNE ARMSTRONG

Applicant

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

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date31 October 2006

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Carer Allowance for disabled child – applicant qualified – back-dating for maximum period allowed – can enquiry as to entitlement be treated as a claim? – extent of duty of Department to advise as to potential benefit entitlements – commencement date of payment – decision affirmed

Social Security Act 1991 ss 11(1)

Social Security (Administration) Act 1999 Schedule 2, ss 16(1) & (2)

REASONS FOR DECISION

31 October 2006   Senior Member L Hastwell   

1.      Yvonne Armstrong (the applicant) applied to Centrelink (the Department) on 16 May 2003 for a Carer Allowance (CA) with respect to the care that she provides for her child, Rachel Bartlett.  That claim was rejected.  On 3 May 2004 the applicant applied again for CA for her care of Rachel and provided some further medical evidence to the Department.  That claim was successful.  CA was granted and was back-dated 52 weeks to become payable from 7 May 2003.

2.      The applicant sought a review of the decision and said that the claim should have been allowed with effect from March 2001 when she first approached the Department and made inquiries about her entitlement to benefits.

3.        On 27 May 2004 the Authorised Review Officer (ARO) affirmed the decision under review.  Upon review, the Social Security Appeals Tribunal (SSAT) affirmed that decision on 1 September 2004.

4.      The applicant seeks a review of the SSAT decision by this Tribunal.

legislation

5.      The relevant legislation is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).

6. Section 11(1) of the Act provides that any applicant for a Social Security payment must make a claim for that payment in accordance with that particular division of the Act. There is no dispute that the applicant lodged a claim for CA in the appropriate form and is qualified for the allowance.

7. Section 16 of Schedule 2 of the Administration Act provides back-dating provisions in relation to CA:

“16      Carer allowance for disabled child or children

(1)      If:

(a)a person is qualified for carer allowance for a care receiver who is a disabled child or for 2 care receivers who are disabled children; and

(b)the person makes a claim for carer allowance within 52 weeks after the day on which the person became qualified for the allowance;

the person’s start day in relation to the allowance is the day on which the person became qualified for carer allowance.

(2)      If:

(a)a person is qualified for carer allowance for a care receiver who is a disabled child or for 2 care receivers who are disabled children; and

(b)the person makes a claim for carer allowance more than 52 weeks after the day on which the person became qualified for the allowance;

the person’s start day in relation to the allowance is the first day of the period of 5 of the of the from a date earlier than 2 weeks ending immediately before the day on which the claim was made."

issues

8.      The Tribunal must determine whether the applicant is eligible for CA in respect of the care that she provided for a Rachel from a date earlier than 7 May 2003.

standard of proof

9.      The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal.

the hearing

10.     The applicant represented herself before the Tribunal.  Mr Goldsworthy represented the Department.

11.     The applicant told the Tribunal that after separating from her husband in March 2001 she sought advice from Centrelink as to her entitlement to benefits.  She went to the Edwardstown office of the Department and spoke at length with a woman who she now knows is named Janelle.  She is convinced that she told Janelle about her daughter Rachel's special needs.  Rachel has been a difficult child from birth and at the time she had already been diagnosed as having some disabilities although further disabilities have been diagnosed since that time.  Rachel was born on 21 November 1997 and was aged three at the time.

12.     The applicant said that despite her enquiry as to her entitlement to any possible benefits, Janelle did not advise her of any allowance that she could apply for, and told her that she was not eligible for Parenting Payment as her earnings were too high.  At the time the applicant was working on a full-time basis.  She was told she may be eligible for Family Tax Benefit.  She was not told that she may be eligible for CA with respect to her child.

13.     Some time later the applicant heard about CA from a colleague in the workplace and she lodged a claim for that benefit.  Her first claim was rejected as the doctor focused primarily on the child's asthmatic condition.  Her second application which was lodged almost a year later with further medical evidence, was successful.  Back-dating was allowed for 52 weeks from the date that she lodged the claim. 

14.     The applicant asserts that she and Rachel have been disadvantaged by the Department's failure to advise her of a possible eligibility for CA in March 2001 when she first made an inquiry.  Because she was not told of the benefit in 2001 when she first approached Centrelink, Rachel did not receive speech pathology until after she turned five years of age.  As a result, the applicant is now required to fund this speech pathology from her own resources, which are limited.  Had she been granted CA prior to the child commencing school, speech pathology would have been provided free of charge.  She would also have been in a position to make other choices about the extent to which she worked as she would have had the benefit of the allowance. 

15.     The applicant is confident that had she made application for the benefit in 2001, her application would have been successful.

16.     The applicant described the difficulties that she has experienced in managing her child on her own since she separated.  The child’s disabilities have become more evident as the years progressed.  Rachel is now eight years of age and attending primary school.  She has been diagnosed as suffering from asthma, a central auditory processing disorder, behavioural problems and learning difficulties.  She possibly also suffers from autism. 

submissions

17.     The Department's submission was that there was no legal basis upon which CA could be granted prior to 7 May 2003 as the maximum back-dating under the legislation had been allowed.

18.     The applicant asked the Tribunal to find that the Department owed a duty of care to her and to all other people who applied for benefits to advise them about any benefit to which they may be entitled.  She submitted that the Department had a duty to advise her with respect to her possible entitlement to CA when she spoke to the Departmental officer in 2001 and CA should therefore be payable to her from the date that she first approached the Department in March 2001.

consideration

19. The applicant's discussion with a Departmental officer in March 2001 did not amount to an application for a benefit. An application for a benefit must be in accordance with the requirements of the Act. The applicant does not ask the Tribunal to find that her discussion with a Departmental officer in 2001 amounted to an application for a benefit, nor would it amount to an application under s 11(1) of the Act. Her argument is that there is an inherent duty of care owed by the Department to the community to ensure that they properly advise a person in her position who approaches the Department for advice and information, as to any benefits possibly available to that person. She says that it is fair and reasonable that she be granted the benefit from the date that she approached the Department in 2001.

20.     The Tribunal is not in a position to make any specific finding as to the conversation that took place between the applicant and the Departmental officer in 2001.  The conversation took place some years ago.  The applicant claims to have clear recall of the detail of the conversation, but in the context of her claim for Compensation for Detriment caused by Defective Administration (CDDA) that was available at the hearing the officer involved was interviewed.  She had no recall of the particular interview, but was convinced that had the customer raised specific issues such as her child's disabilities she would have invited her to make a claim.  The officer in question was not called to give evidence.  The Tribunal draws no inference from the fact that she did not give evidence.

21.     The applicant agreed that there are pamphlets available for the public at Centrelink offices that provide information about benefits.  Nevertheless she was strongly of the view that the responsibility lies on the Department to point people in the right direction when they are applying for benefits or making inquiries as to their entitlements.

application of the law

22.     The applicant's successful claim for CA was lodged on 3 May 2004 and back-dating was allowed from 7 May 2003, being a date 52 weeks prior to the date of lodgement of the claim.

23. Section 16(2) of Schedule 2 of the Administration Act makes provision for back-dating CA for 52 weeks after the day on which the person became qualified in circumstances where a person claims CA more than 52 weeks after the day on which the person became qualified for the allowance.

24.      The Department has accepted that in this case Rachel had disabilities that would have qualified the applicant to receive CA at a date more than 52 weeks prior to her successful application they have therefore allowed the maximum back-dating permissible under the legislation.

25. In some instances legislation can provide a further discretion for the decision-maker in determining when an allowance should become payable. In this case the Tribunal can find no other provision in either of the Acts that allows for back-dating of the relevant payment beyond the maximum permissible back-dating that has been allowed, namely 52 weeks. There is no discretion accorded to the Tribunal in s 16(2) of Schedule 2 of the Administration Act. The Tribunal is therefore obliged to affirm the decision under review as it is the correct decision in accordance with the law.

26.     The Tribunal is mindful of the applicant's argument that the Department owes a duty of care to members of the public to provide accurate information as to possible benefit entitlements when a member of the public makes inquiries about their entitlement to benefits.  There is no doubt that the Social Security legislation is a complex and lengthy piece of legislation and Departmental officers must be fully trained to ensure that a member of the public making an inquiry is advised of all possible options when they approach the Department for advice.  It is possible that this did not occur in this case.  However, there is not sufficient evidence for the Tribunal to make any finding in that regard.

27.      The applicant has certainly been under a lot of stress and pressure for a long time as a result of her child's disabilities.  It is unfortunate that she did not become aware at an earlier time of her ability to apply for CA and of what was required to make such an application.

28.     The Tribunal notes that there has already been a consideration of a claim by the applicant under the CDDA scheme.  There was an inquiry in the context of the claim and the claim was unsuccessful. 

29.     The Tribunal is constrained by the relevant legislation and legally there is no basis on which back-dating can occur beyond the 52 weeks already granted.  It is not for the Tribunal to make any finding as to the extent of any duty of care owed by the Department to the public.  That is an issue for consideration in other venues.  The CDDA provisions are directed towards such issues and in some instances the Ombudsman may be an appropriate body to investigate allegations of defective administration.  The Tribunal makes no finding that in this case there has been defective administration and even if it did make such a finding that could not alter the Tribunal's decision which must be in accordance with the relevant legislation. 

30.     In the circumstances the Tribunal affirms the decision under review.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         ............J Coulthard............................................
  Associate

Date of Hearing  21 September 2006
Date of Decision  31 October 2006
Applicant  In person

Advocate for the Respondent   Mr C Goldsworthy

Centrelink Legal Services Branch