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

[2021] AATA 2126

Avgoustatos and Secretary, Department of Social Services (Social services second review) [2021] AATA 2126 (24 May 2021)

Division:GENERAL DIVISION

File Number(s):      2020/8320

Re:Gabriel Avgoustatos  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:                  Member M Kennedy

Date:24 May 2021

Place:Adelaide

The decision under review is affirmed.

…………..…[SGND]…………………

Member M Kennedy

Catchwords

SOCIAL SECURITY – carer allowance – whether start date of payment is correct – where carer payment already granted – decision under review affirmed

Legislation

Social Security (Administration) Act 1999

Secondary Materials

Social Security (Administration) (Class of Persons - Intent to Claim) Determination 2018

REASONS FOR DECISION

Member M Kennedy

24 May 2021

1. On 3 June 2020, Centrelink decided to grant carer allowance to Mr Avgoustatos (the applicant) from 19 May 2020 on the basis that this was the date that he had lodged his claim for that payment.

2. Earlier, on 19 September 2017, the applicant had applied for carer payment, which was granted with effect from 10 October 2017.

3. The applicant is aggrieved that his carer allowance payment did not commence from the same date as the carer payment.  The applicant’s recollection is that when he applied for carer payment, he had noticed that an option was available to apply for carer allowance, but a Centrelink officer had told him he should apply for carer payment because it paid more.  It was not until May 2020 that another Centrelink officer asked him why he was not also receiving carer allowance and he realised he should be receiving both.

4. Upon grant of carer allowance with effect from 19 May 2020, the applicant requested Centrelink to review its decision about the start date.  On 9 September 2020, an authorised review officer decided to affirm the decision under review.

5. The applicant applied to this Tribunal for review in the Social Services and Child Support Division (AAT1).  The Tribunal (differently constituted) also affirmed the decision, noting that in the circumstances there was no discretion to pay the applicant carer allowance from a date earlier than the date of his claim.  This is the decision under review.

6. The applicant applied for review in the General Division of the Tribunal (AAT2) on 16 December 2020.  The applicant explained at the hearing that his motivation for applying for an AAT2 review was to exhaust his review rights so he might pursue a claim for compensation under the scheme for Compensation for Detriment caused by Defective Administration (CDDA).

   Legislative Framework

7. Sections 41 and 42, and Schedule 2 to the Social Security (Administration) Act 1999 (the Administration Act) sets out the rules for identifying a person’s ‘start day’ for a social security payment.  The general rule is that the start day is the day on which the claim is made if the person is qualified on that day.  I have examined a number of very specific exceptions to this general rule in respect of particular social security benefits, but none are applicable.

8. Section 11 of the Administration Act states that for a person to receive a social security payment they must make a claim. Section 16 of that Act specifies the manner by which a claim may be made. A claim may be made by lodging a written claim in accordance with a form approved by the Secretary (subsection 16(1) and (2) of the Administration Act), or in another manner approved by the Secretary.

   Consideration

9. It is not in issue that the applicant lodged his claim for carer allowance on 19 May 2020 (T7).  However, I note that prior to online claim processes becoming the usual way in which social security claims are made, the paper claim form for carer allowance was incorporated into a single paper claim form with a claim for carer payment.   An example of such a claim form was helpfully tendered by the respondent to confirm my recollection in this regard.

10. It is therefore unlikely that the issue that has arisen in this matter could arise in the context of a paper claim.  It is not clear why the design of the online claim process has departed from the process of incorporating both claims into the same process, given qualification for carer allowance, generally speaking, is established on qualification for carer payment. 

11. Despite these observations, I nonetheless must find on the evidence before me that the claim for carer allowance was lodged on 19 May 2020.

12. The legislation makes provision for some vulnerable claimants to be taken to have made an application on an earlier date. Section 13 of the Administration Act provides that a claim will be taken to have been made (deemed) on the date a person first contacts Centrelink regarding the claim, if the person lodges the claim within 14 days of that contact or 13 weeks of that contact, depending on the circumstances. From 1 July 2018 however, the law has been changed so that the deemed claim will only apply if a person is included in a class of persons determined in an instrument. The applicable instrument is the Social Security (Administration) (Class of Persons - Intent to Claim) Determination 2018 (the Determination).

13. In any event, these provisions cannot assist the applicant.  Putting to one side the provisions of the Determination, even if I were to treat the applicant’s claim in respect of carer payment as a contact for these purposes, the claim was not lodged within 13 weeks of that contact.  There is also no evidence of a relevant contact prior to 19 May 2020, which is the date the claim was lodged and the date from which payment commenced.

14. I also accept the respondent’s contention that section 15 of the Administration Act cannot assist the applicant. This provision deals with circumstances in which an incorrect claim has been made (in the sense of a claim but for the incorrect payment) and regulates the circumstances in which that incorrect claim might be treated as a claim for a different payment. The provisions do not encompass a situation where no claim is made. Furthermore, the applicant’s claim for carer payment was granted, and so cannot be considered as an incorrect claim.

15. It follows therefore that the decision under review is legally correct, and the applicant’s start date has been correctly arrived at by applying the social security legislation.

16. In addressing the Tribunal, the applicant emphasised that he considered he had been given incorrect information by a Centrelink officer when lodging his carer payment claim.  I have understood the applicant’s evidence in this regard and have not overlooked the matter that has motivated him to bring the proceedings to the Tribunal.  The social security legislation does not, however, provide a mechanism for the Tribunal to address that complaint.  There is no discretion in respect of the applicant’s start date in this case.

17. I note the applicant was aware of his option of applying directly to Centrelink for consideration under the CDDA scheme.  The Tribunal has no authority to entertain claims under that scheme.

    Decision

18. I affirm the decision under review.

    ……………[SGND]…………………..

    Administrative Assistant Legal

    Date: 24 May 2021

Date of hearing:	13 May 2021
Applicant:	Self-represented (by telephone)
Representative for the Respondent:	Mr Christian Visser, Services Australia