Asiminaris and Secretary, Department of Social Services (Social services second review)
[2020] AATA 993
•30 April 2020
Asiminaris and Secretary, Department of Social Services (Social services second review) [2020] AATA 993 (30 April 2020)
Division:GENERAL DIVISION
File Number: 2019/6782
Re:Katherine Asiminaris
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Mr S Evans, Member
Date:30 April 2020
Place:Sydney
The decision under review is affirmed.
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Mr S Evans, Member
CATCHWORDS
SOCIAL SECURITY – bereavement payment – carer allowance – qualification – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 21, 23, 992LA, 992LB
SECONDARY MATERIALS
Guides to Social Policy Law, Social Security Guide
REASONS FOR DECISION
Mr S Evans, Member
30 April 2020
Katherine Asiminaris (“the Applicant”) has applied for a review of a decision of the Social Services and Child Support Division (“AAT1”) which affirmed a decision of the Department of Social Services (“the Respondent” or “Centrelink”) that she was not qualified for a bereavement payment of carer allowance following the death of her father.
The hearing was held by telephone on 31 March 2019. The Applicant was self-represented and I found her to be a credible witness.
For the reasons that follow, the decision under review will be affirmed.
BACKGROUND
On 5 November 2010 the Applicant was granted carer allowance in respect to the care she provided to her mother. Carer allowance is an income tested fortnightly supplement provided to a person who cares for someone who has a disability, serious illness or is frail aged.
On 22 February 2011 she was granted carer payment in respect to the care she provided to her mother. Carer payment provides income support to people who are unable to support themselves through paid employment because of the demands of their caring role.
From 19 December 2013 the Applicant was granted additional carer allowance in respect to the care she provided for her father.
On 8 April 2019, the Applicant notified Centrelink that her father had passed away on 29 March 2019. The following day Centrelink advised the Applicant that from 23 April 2019 she would only receive carer allowance for the care that she provides to her mother.
The Applicant’s contentions
The Applicant submits that she is entitled to a carer allowance bereavement payment. This allows for carer allowance to continue after a person dies for up to 14 weeks. The Applicant raises three issues regarding her eligibility.
Primarily, the Applicant takes issue with the Respondent’s contention that she is not eligible for a carer allowance bereavement payment on account of her receiving carer payment for the care she provides to her mother. She submits that if her father had required care before her mother, all things being equal she would have received the bereavement payment of carers allowance. She summarised her contention during the hearing:
So as long as I wasn’t receiving the carer payment for my father, I’m not excluded from getting the carer allowance bereavement payment. If I was receiving the carer payment for my father, then I receive the carer payment bereavement payment. So that’s basically so people don’t get double paid. So if you’re on a carer payment you don’t get the carer allowance bereavement payment once that person passes. If you’re on the carer allowance, then again you only get the carer payment if you’re on both payments. You have to be on another income support payment to actually receive carer allowance bereavement payment… Because people who are on carer payment get a substantially larger amount of money once the person they care for dies.
The Applicant also contends that she was entitled to the payment but because she was not asked about it at the time she informed Centrelink of her father’s death, her father’s “Centrelink account” was closed and consequently she was unable to receive it.
Finally, she submits that neither she nor her mother received any Centrelink assistance for the death of her father to assist with the expenses incurred.
ISSUE TO BE DETERMINED
The issue for the Tribunal to determine is if the Applicant qualified for a bereavement payment of carer allowance following her father’s death.
RELEVANT LEGISLATION AND GUIDELINES
The following sections of the Social Security Act 1991 (Cth) (“the Act”) are considered:
21 Bereavement definitions
(1) In this Act, unless the contrary intention appears:
partner bereavement payment means a payment under section 83, 146G, 189, 238, 514B, 660YKD, 771NW or 823.
(2) For the purposes of this Act, if a person dies:
(a) the bereavement period in relation to the person’s death is the period of 14 weeks that starts on the day on which the person dies; and
(b) the bereavement notification day in relation to the person’s death is the day on which the Secretary becomes aware of the death; and
(c) the first available bereavement adjustment payday in relation to the person’s death is the first payday of the person after the bereavement notification day for which it is practicable to terminate or adjust payments under this Act to take account of the person’s death; and
(d) the bereavement rate continuation period in relation to the person’s death is the period:
(i) that begins on the day on which the bereavement period begins; and
(ii) that ends:
(A) if the first available bereavement adjustment payday is before the end of the bereavement period—on the day before the first available bereavement adjustment payday; or
(B) if the first available bereavement adjustment payday occurs on or after the day on which the bereavement period ends—the day on which the bereavement period ends; and
(e) there is a bereavement lump sum period in relation to the person’s death if the first available bereavement adjustment payday occurs before the end of the bereavement period and the bereavement lump sum period is the period that begins on the first available bereavement adjustment payday and ends on the day on which the bereavement period ends.
Subdivision BA—Death of disabled adult
992LA Continued carer allowance during bereavement rate continuation period where disabled adult dies
(1) If:
(a) a person is receiving carer allowance (other than because of this section) for a care receiver who is a disabled adult; and
(b) the disabled adult dies; and
(c) the person is receiving an income support payment (other than carer payment) at the time of the death of the disabled adult; and
(d) the person is not qualified for a payment under a provision of this Act (other than this section), or of the Veterans’ Entitlements Act, in respect of the death of the disabled adult;
the person is qualified for carer allowance during the bereavement rate continuation period as if the disabled adult had not died and had received the care and attention referred to in paragraph 954(1)(d) or 954A(1)(d) (as the case may be).
Note: For bereavement rate continuation period see subsection 21(2).
(2) The rate at which the carer allowance is to be paid during the bereavement rate continuation period is the rate at which the allowance was payable to the person immediately before the day on which the disabled adult died.
992LB Lump sum payable in some circumstances
If:
(a) a person is qualified for carer allowance under section 992LA in relation to a disabled adult who has died; and
(b) the first available bereavement adjustment payday occurs before the end of the bereavement period;
a lump sum (worked out using the lump sum calculator at the end of this section) is payable to the person.
The term “income support payment” is defined in section 23(1) of the Act and relevantly provides that:
income support payment means a payment of:
(a) a social security benefit; or
(aa) a job search allowance; or
(b) a social security pension; or
(c) a youth training allowance; or
(d) a service pension; or
(e) income support supplement; or
(f) a veteran payment.
The Social Security Guide (“the Guide”) provides the bereavement provisions for carer allowance at 3.6.7.175:
3.6.7.175 Bereavement Provisions for CA
Death of an adult with a disability
A person receiving CA (adult) may qualify for a CA bereavement payment upon the death of the disabled adult for whom they had caring responsibilities.
A 14 week bereavement payment is payable from the date of the disabled adult's death in the following circumstances:
the carer was in receipt of CA (adult) for the care of a disabled adult on the day the disabled adult died,
the carer was also receiving an income support payment (other than CP) on the day the disabled adult died, AND
the carer did not otherwise qualify for a bereavement payment because of their receipt of an income support payment (under the SSAct or VEA).
EVIDENCE
Centrelink records confirm that the Applicant contacted the Respondent on 8 April 2019 to confirm that her father had died on 29 March 2019.[1]
[1] T-dcouments, T7 at p 28.
She followed up on 10 April 2019 querying eligibility for bereavement payment and again on 15 May 2019.
She called again on 30 May 2019 and told the customer service officer that she had attended a Centrelink service centre and was informed that she was eligible for a “CDA bereavement payment” according to policy. No Centrelink record exists of the interaction. [2]
[2] T-documents, T7 at p 31.
It is not in contention that the Applicant was in receipt of carer allowance for both her mother and her father. There is also no contention that she was in receipt of carer payment on the basis of the care she provides for her mother.
A person receiving carer allowance, as the Applicant was, may qualify for a carer allowance bereavement payment upon the death of a disabled adult for whom they had caring responsibilities if, in addition to receiving carer allowance, they were receiving an income support payment other than carer payment on the day the disabled adult died and the carer did not otherwise qualify for a bereavement payment because of an income support payment.
There is no evidence that the Applicant qualified for a bereavement payment because she received an alternative income support payment.
She was at the time receiving an income support payment, being carer payment. Therefore the Applicant meets the requirements of subsection 992LA(1)(a), (b) and (d). In order to qualify for carer allowance bereavement payment the Applicant is also required to satisfy section 992LA(1)(c).
Subsection 992LA(1)(c) of the Act specifically precludes recipients of carer payment from being eligible for carer allowance bereavement payment. Consequently the Applicant does not qualify for carer allowance bereavement payment.
The Applicant contends that where paragraph 992LA(1)(c) states “that a person is receiving an income support payment other than carer payment” that it is in reference to the care provided to the person who has died. She argues that as she is receiving an income support payment, carer payment, in respect to the care she provides another person, her mother, that she meets this provision.
The Respondent contends that paragraph 992LA(1)(c) is clearly drafted and unambiguous and the Tribunal agrees. It clearly specifies that a person must be receiving an income support payment other than carer payment at the time of the person’s death. The Applicant’s income support payment was carer payment, and that payment is specifically excluded by the legislation.
As to the Applicant’s contention that if she had been in receipt of carer payment in respect to the care that she provided her father rather than that provided to her mother, she would have been eligible for continued carer allowance during the bereavement rate continuation period following the death of her father, this is also not accepted by the Tribunal.
If that were the case, she would still not have met the requirement in paragraph 992LA(1)(c). As carer allowance is not an income support payment included in section 23(1) of the Act the Applicant was not in receipt of an income support payment other than carer payment.
CONCLUSION
The Applicant was caring for both her parents for many years. Her father had suffered a stroke and was legally blind before he died. The Applicant continues to care for her mother. She says that she finds herself in considerable financial hardship and the continuation of the carer allowance during the bereavement period would have gone a small way towards reducing her financial burden. The Tribunal accepts this is the case.
The law is clear that recipients of carer payment are not eligible. That is clearly the intent in the way it was drafted and the Tribunal must respect that.
As to the contention that the payment was not made because of the closure of the Applicant’s father’s Centrelink account, there is no evidence before the Tribunal that would demonstrate this was a meaningful consideration in any decision to deny the Applicant payment.
DECISION
For the reasons stated above the decision under review is affirmed.
I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member
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Associate
Dated: 30 April 2020
Date of hearing: 31 March 2020 Applicant: By phone Solicitors for the Respondent: Ms E Ulrick, Services Australia
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Administrative Law
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