Bienstein and Secretary to the Department of Family and Community Services

[2001] AATA 322

DECISION AND REASONS FOR DECISION [2001] AATA 322

ADMINISTRATIVE APPEALS TRIBUNAL)
  Nº V00/1259
GENERAL  ADMINISTRATIVE DIVISION)

Re:            HELEN BIENSTEIN

Applicant

And:         SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Mrs H.E. Hallowes, Senior Member
Date:             20 April 2001
Place:            Melbourne

Decision:The decision under review is affirmed.

(sgd) H.E. Hallowes
  Senior Member
  SOCIAL SECURITY — carer allowance — applicant paid carer payment — date from which carer allowance payable — whether acute onset — whether Centrelink obliged to advise people of their entitlements
Social Security Act 1991 ss.25, 962
Social Security (Administration) Act 1999 s.13(1)
Schedule 2 Cls.3, 17
Social Security (Administration and International Agreements) (Consequential Amendments)

Act 1999

Assistance For Carers Legislation Amendment Act 1999
National Health Act 1953
Administrative Decisions (Judicial Review) Act 1977 s.5
Acts Interpretation Act 1901 s.15AB

REASONS FOR DECISION

20 April 2001  Mrs H.E. Hallowes, Senior Member

1. Mrs Bienstein seeks review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 5 September 2000.  The SSAT advised Mrs Bienstein that it affirmed "the decision under review".   The decision under review was recorded as:

   A decision made by a Centrelink officer on 26 May 2000 to not backdate the grant of carer allowance before 6 March 2000.   On 5 June 2000, an authorised review officer reviewed and affirmed the original decision. 

2. In its reasons for decision the SSAT recorded the following history:

   1.Ms Bienstein was in receipt of carer pension (now called carer payment) for acting as a carer for her daughter, Tamara, who suffers from a genetic condition, recently diagnosed as Behcet's syndrome.

   2.On about 6 March 2000, Ms Bienstein contacted the Centrelink teleservice centre and was informed that she might be eligible for payment of carer allowance.   She later submitted a medical report and claim form.   By a decision dated 22 May 2000, carer allowance was granted from 6 March 2000.

   3.On 11 March 2000, Ms Bienstein returned to Centrelink a review form and medical report on her daughter's condition.

   4.On a number of occasions, Ms Bienstein informed Centrelink of her belief that she was previously eligible for a carer allowance, and that payment should be backdated to 19 March 1998, the date from which the pension was granted.   On 26 May 2000, a delegate decided that payment of carer allowance could not be backdated before 6 March 2000.

   . . ..

3. The reasons for decision of the SSAT are included in the documents lodged by the Secretary pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents") which the Tribunal had before it at the hearing. The Tribunal also had before it further material with respect to Centrelink's Vision and Mission Statement, Strategic Framework, and explanatory memoranda to relevant bills provided to the Tribunal by both Mrs Bienstein and Mr M. Todd, an advocate with Centrelink, who represented the Secretary at the hearing. Mrs Bienstein represented herself and she said that she had been assisted in finding relevant material by a Tribunal librarian. Mr Todd also provided Mrs Bienstein and the Tribunal with a copy of a statement of the Secretary's facts and contentions with respect to the application.

4. The documents disclose that Mrs Bienstein lodged a claim for carer allowance on 11 May 2000 under the Social Security Act 1991 ("the Act"). She advised on the form that she had been paid carer payment since 19 March 1998 with respect to her daughter, Tamara. On 22 May 2000 it was recorded on the Centrelink computer that a decision was made to grant "CDA" to Mrs Bienstein from 6 March 2000. Mrs Bienstein apparently asked for that decision to be reviewed. A text was entered into her records on the Centrelink computer on 26 May 2000 as follows:

   Txt:Reconsideration of Decision

   Payment type:  OTH
   Decision:   DOC
   What specific aspect of the original decision does the customer disagree with:
   Customer believes that she should have been granted Carer Allowance at the time she was granted Carer Payment.   As new Carer Allowance didn't come in until July 1998, and she was granted Carer Payment in March 1998 she needed to have lodged a claim when the new Carer Allowance came in.   Customer lodged a Carer Payment review in April this year she thought that she would automatically qualify for the Carer Allowance.   She was advised that she had to lodge a claim, which she eventually did and we were able to backdate it from 6 March 2000 – per intention to claim provisions etc . . . She is not entitled to the 12 mths backdating of CDA as condition of caree is not attributable to an acute event.   Customer believes that she should have been advised that an entitlement to CDA existed when it was introduced in June 1998.   Client has not provided additional information at this time
   Relevant Facts:
   Failure to lodge CDA claim from date CDA was introduced.
   Evidence Supporting Facts:
   Customer acknowledges that she did not lodge claim prior to this year.
   . . .
   Reconsideration Outcome:-   AFFIRMED
   . . .    

By letter dated 5 June 2000, Mrs Bienstein was advised that the decision was affirmed by the authorised review officer ("ARO") and that the decision was based on the law set out in the Social Security (Administration) Act 1999 ("the Administration Act").

1. The Social Security (Administration and International Agreements) (Consequential Amendments) Act 1999 repealed administrative provisions under the Act and the Administration Act now provides for that administration. Schedule 2 of the Administration Act provides rules for working out start days. It was not clear from the documents why Mrs Bienstein was paid carer allowance with effect from 6 March 2000, although she had apparently contacted the Centrelink Teleservice Centre on that day. Mr Todd drew the Tribunal's attention to subsection 13(1) of the Administration Act, which provides:

   13(1)       For the purposes of the social security law, if:

   (a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and

   (b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and

   (c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and

   (d)the person lodges a claim for the social security payment within 14 days after the Department is contacted;

   the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.   

2. The documents include a copy of a letter sent to Mrs Bienstein by Centrelink on 6 June 1999, in which she was advised:

   6 June 1999
   . . .
   Your Special Carers Edition of the Disability Connections newsletter is enclosed.   This newsletter tells you about some changes that will affect your Carer Payment from 1 July 1999.
   We may need some information from you and there are more details about this on the back of this letter.   There are some changes to the information we need that will also take effect from 1 July 1999.   You may want to keep the newsletter and this letter in case you need to refer to them in the future.
   . . .  

A copy of A Carer's Guide ("the Guide") was included in the documents, which advised:

Carer Payment
. . . The person providing care cannot receive Carer Payment as well as another pension or income support payment, but they can receive Carer Payment and Carer Allowance together.
. . .
Carer Allowance
Carer Allowance is a new social security payment introduced from 1 July 1999 to people caring for someone who has a disability, or is frail aged, or is chronically ill.   This payment replaces Child Disability Allowance paid in respect of a child with a disability and Domiciliary Nursing Care Benefit paid in respect of an adult with a disability.   Previously Domiciliary Nursing Care Benefit was administered by the Department of Health and Aged Care.   The new payment is the responsibility of the Department of Family and Community Services and is delivered by Centrelink.
Carer Allowance is an income supplement of $75.60 a fortnight (as at 1 July 1999).   It is subject to annual indexation.   It is not means tested, which means that the income or assets of the carer or the care receiver do not affect qualification for Carer Allowance.   Carer Allowance has two streams of payment:

• . . .

• Carer Allowance (Adult) – previously Domiciliary Nursing Care Benefit.

  . . .
  Carer Allowance (Adult)
  . . .
  Carers who were receiving Domiciliary Nursing Care Benefit previously will continue to receive the payment under the new name, 'Carer Allowance', from 1 July 1999.   Reviews of the entitlement will continue to be conducted on a regular basis, using the Adult Disability Assessment Tool.   

Mrs Bienstein told the Tribunal that the Guide did not alert her to the fact that she may be entitled to more than carer payment under the Act. It was her understanding that carer allowance may be applied for if you were not going to be paid carer payment.

1. Clause 17 of Schedule 2 of the Administration Act provides:

   17(1)       If:

   (a)a person is qualified for carer allowance for a care receiver who is a disabled adult in circumstances where the disability affecting the adult is due to an acute onset; and

   (b)the person makes a claim for carer allowance within 26 weeks after the day on which the person became qualified for the allowance in the circumstances mentioned in paragraph (a);

   the person's start day in relation to the allowance is the day on which the person became qualified for carer allowance in the circumstances mentioned in paragraph (a).

   (2)          If:

   (a)a person is qualified for carer allowance for a care receiver who is a disabled adult in circumstances where the disability affecting the adult is due to an acute onset; and

   (b)the person makes a claim for carer allowance more than 26 weeks after the day on which the person became qualified for the allowance in the circumstances mentioned in paragraph (a);

   the person's start day in relation to the allowance is the first day of the period of 26 weeks ending immediately before the day on which the claim was made.      [emphasis added]          

2. The health professional assessing Tamara under the Adult Disability Assessment Tool ("the Tool"), Dr V. Polgar, advised on 16 March 2000 that Tamara's medical condition commenced more than six months earlier and that current care needs were not attributable to an acute event. One of the concerns expressed by Mrs Bienstein at the hearing was that medical practitioners are given no advice with respect to the meaning of "acute onset" under the Act and, having researched the passage of the relevant Bill through Parliament, it appeared to her that the insertion of "acute onset" into clause 17(2) of the Administration Act did not appear to have been discussed.

3. It was Mrs Bienstein's contention that the disability affecting her daughter was due to an acute onset and that, applying clause 17, she should be entitled to carer allowance before 6 March 2000. Mrs Bienstein also contended that Centrelink, as a "one-stop shop", had an obligation to provide information about all services which may be available to customers, and it had given that undertaking under its Charter. She noted the News Release from the then Minister for Social Security, Senator Jocelyn Newman, on 2 April 1998, that carers would now ". . . have the convenience of a one-stop shop for their social security entitlements". The News Release suggested to Mrs Bienstein that there was an obligation on Centrelink to advise her that, if she was in receipt of carer payment, she was also entitled to carer allowance. Mrs Bienstein also referred to a hearing before the Senate Community Affairs Legislation Committee on 10 November 1997 with respect to carers of disabled adults and disabled children. Reference was there made to the backdating of payment of social security benefits and it was noted that one of the most commonly criticised aspects of payment for carers was the issue of back-payment and knowledge of the existence of such payment. Mrs Bienstein noted that Centrelink was committed to be

   . . . responsive to the needs of clients and provide high quality, appropriate, relevant and timely information and data, in accordance with Business Partnership Agreements
   . . . [to] listen to customers and [to] be responsive and innovative in finding solutions
   . . . [to] provide correct information, assessment, referral and payment, and make sure customers understand their rights and obligations

4. Mrs Bienstein told the Tribunal that she lives with her daughter, Tamara, who has just turned 22 years of age.   Tamara is disabled.   Towards the end of 1997, Tamara had "stopped being able to function and needed full time care".   Tamara had a history of being ill, and lacking energy which could not be explained.   Mrs Bienstein said:

   . . . So, in that way, it was not an acute onset but it was acute from the point of view that she then became completely unable to do things for herself and I had to take on 24 hour care for her.          

Mrs Bienstein had contacted Centrelink about her circumstances on the 9th or the 10th of March 1998 and again on the 17th or the 19th of March.   She was sent a claim form for carer pension to complete but she was not advised of her entitlement to any other benefit.   She was not advised of the non-means tested domiciliary nursing care benefit which the Tribunal notes was then administered by the Department of Health and Aged Care under the National Health Act 1953 ("the National Health Act"). Mrs Bienstein contended that she would have been qualified for a domiciliary nursing care benefit in respect of Tamara from 11 August 1997 when Tamara became acutely disabled and that there should be some compensation because she had not been told about the domiciliary nursing care benefit, and that she should be paid carer allowance from 1 July 1999 when it came into effect. On 6 March 2000 when she contacted Centrelink by telephone, she was told by the operator at the call centre:

. . . "Well, this is strange.   You have carer pension but you don't have the allowance.   Why is this?   Don't you know that you should be entitled to both?".   

Mrs Bienstein said that she had then contacted the team which was supposed to be looking after her welfare at Centrelink.   She said she was told that she would not need to lodge a claim form as Centrelink had before it the report she had lodged from Dr Polgar (see paragraph 8 above).

1. Mrs Bienstein had lodged a claim for carer pension with respect to Tamara on 13 March 1998 and she had been granted carer pension from 14 May 1998.   When provisions with respect to carers were repealed and new provisions substituted under the Assistance For Carers Legislation Amendment Act 1999 ("the Amendment Act"), which came into effect so far as relevant on 1 July 1999, she was automatically transferred to carer payment under the new provisions. Mr Todd conceded at the hearing that, when she first claimed carer pension, Mrs Bienstein should have been advised by Centrelink of the existence of the domiciliary nursing care benefit, although her qualification for that payment would have had to be considered.

2. Mrs Bienstein took issue with some of the reasons for decision of the SSAT which highlights the accuracy needed when a decision-maker gives reasons for decision when referring to relevant legislative provisions.   She was also concerned that Dr Polgar may have no idea what was meant by "an acute event" (see paragraph 8 above).   Mrs Bienstein had undertaken considerable research into this issue which concerned her.   She said that the words "acute event" had not been discussed by the legislature in Committee stage,

   . . . So there is nothing in the supporting — the legislation, nothing in the second reading speeches or in discussion speeches to Parliament, nothing to indicate that it should have been limited to a very specific incident that said "yes, from here on I have become a full time carer".   
   So I don't think that it is fair to consider that acute onset part of the legislation to be so demanding because the purpose of it was certainly not to disallow people the back dating if they had been in a situation where the child had been chronically ill but intermittent and now has become the same sort of illness but more difficult for them to do anything.  

3. The Tribunal must consider the relevant legislation as a whole, and must apply it to the circumstances before it. It has no discretion to place less emphasis on any part of the relevant legislation because it was not discussed in Committee or referred to in the Second Reading Speech. The Tribunal notes that clause 17 of the Administration Act refers to "where the disability affecting the adult is due to an acute onset" (clause 17(2)(a), paragraph 7 above). To obtain evidence to make a decision under clause 17(2)(a), the medical practitioner is asked, "3 Are the current needs attributable to an acute event?". The relevant legislation raises a slightly different issue, that is, whether the disability affecting the adult is due to an acute onset. Mrs Bienstein invited the Tribunal to consider the purpose of the legislation as disclosed in the Second Reading Speech and the Senate Committee. Subsections 15AB(1), (2) and (3) of the Acts Interpretation Act 1901 provide:

   15AB(1)  Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

   (a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or

   (b)to determine the meaning of the provision when:

   (i)the provision is ambiguous or obscure; or

   (ii)the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.  

   (2)          Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes:

   . . .

   (e)any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted;

   (f)the speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in that House;

   (3)          In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:

   (a)the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and

   (b)the need to avoid prolonging legal or other proceedings without compensating advantage.  

Mrs Bienstein said that, in her opinion, an acute event to a normal person would be something like an elevator dropping because the cable had broken or, in her case, an acute event had occurred because there was a date from which Tamara had been unable to look after herself and she had to assume Tamara's full-time care.   That date was 11 August 1997.  

1. Mr Todd noted that "acute onset" is not defined in the legislation. It was his contention that, in deciding the date from which a social security payment can be made, the Tribunal must apply the Act with respect to qualification for a payment and the Administration Act with respect to start days. The Tribunal must agree with this contention. The commitments set by Centrelink in its Vision Statement are commitments to be aimed for but those commitments cannot affect the application of legislation to a factual situation. The Tribunal advised Mrs Bienstein during the course of the hearing that its powers are limited and, if through maladministration customers of the Department of Family and Community Services have been denied payments under the Act, that is a matter for the Secretary but not the Tribunal. Mr Todd said that, if a customer had concerns about Centrelink not fulfilling its Charter, the Ombudsman should be approached or application made to the Federal Court of Australia under the Administrative Decisions (Judicial Review) Act 1977, whereby a person aggrieved by a decision may apply for an order of review on the grounds of a breach of natural justice or other grounds under section 5. The complexities of the legal system are of small comfort to those such as Mrs Bienstein who feel aggrieved because they become aware that they would have been entitled to assistance at some earlier date but, because they made no claim, no amount is payable.

2. Mr Todd provided Mrs Bienstein and the Tribunal with a copy of the Explanatory Memorandum to the Assistance For Carers Legislation Amendment Bill which dealt with the backdating of claims with respect to a disabled adult, the backdating being for up to six months in certain circumstances where the disabled adult's qualifying disability was due to an acute onset, as follows:

   New subsection 962(2) deals with the situation where a person is qualified for carer allowance for a care receiver who is a disabled adult whose qualifying disability was due to an acute onset but the person's provisional commencement day is more than 6 months after the day on which the person qualified for the allowance as a result of the disability that had an acute onset.   In this situation, arrears of carer allowance can only be backdated 6 months.
   Note 1 at the end of new subsection 962(2) directs the reader to new section 25 of the provisional commencement day.   Note 2 informs the reader that although a person's claim can be backdated 12 months, there may be other factors relating to payability that prevent carer allowance from being paid from that day.  

Mr Todd told the Tribunal that he thought the reference to 12 months, rather than 6 months, was a typographical error. However, it is the Act passed by Parliament which the Tribunal must apply. The meaning of clause 17 of Schedule 2 of the Administration Act is clear on its face. There is no ambiguity or obscurity.

1. The reference to subsection 962(2) and section 25 of the Act in the Explanatory Memorandum is a reference to administrative provisions with respect to backdating of claims for a disabled adult which were repealed and replaced when the Administration Act came into effect on 1 July 2000. They are however the provisions which were in effect when the decision was made by the delegate of the Secretary on 26 May 2000 that carer allowance not be paid to Mrs Bienstein before 6 May 2000, the only difference being the substitution of "26 weeks" under the Administration Act for "6 months" under subsection 962(2) of the Act. The Amendment Act provided transitional provisions with respect to domiciliary nursing care benefits payable under the National Health Act (see Schedule 3, Amendment Act which inserted clause 124(7) into Schedule 1A of the Act), but Mrs Bienstein was not being paid domiciliary nursing care benefits. Nor can benefits be "taken to have been payable" to her as the inclusion of those words in clause 124(7) are with respect to those who may have made claims for domiciliary nursing care benefits just before the repeal of the relevant provisions of the National Health Act and the transfer of relevant provisions to the Act and Mrs Bienstein had made no such claim. The Tribunal cannot accept Mrs Bienstein's interpretation of those words which she put to the Tribunal in a written submission lodged by her after the hearing, as follows:

   7.At the hearing I provided a page from the DSS Guide to the Administration of the SSA 15 April 1996 publication with highlighted heading "Domiciliary nursing care benefit" and emphasis at paragraph 8.3003, which reads as follows:

   "All claimants for carer pension, . . ., should be advised about DNCB."

   8.This directive clearly shows that DNCB provided more liberal qualification requirements than did carer pension. It thus follows that since I qualified for carer pension I would also have qualified for DNCB. On that basis I am a person to whom domiciliary nursing care benefit under Part VB of the National Health Act 1953 is taken to have been payable, immediately before 1 July 1999 in respect of the patient Tamara.     [existing emphasis]   

Mr Todd conceded that Mrs Bienstein should have been advised of "DNCB" (paragraph 11 above) but, as the Tribunal has already pointed out, it has no power to rectify that omission.

1. Turning to clause 17(2) of the Schedule 2 of the Administration Act and any entitlement Mrs Bienstein may have to back payment of carer allowance, Mr Todd put to the Tribunal that:

   . . . We are looking at a sudden event in itself, deterioration in a chronic condition in itself does not fit acute onset.   Onset in just plain English means commencement.   . . .   

The Tribunal finds that Mrs Bienstein was not a person qualified for carer allowance for a care receiver, who is a disabled adult in circumstances where the disability affecting the adult is due to an acute onset.   Mrs Bienstein was qualified for carer allowance and Tamara was a disabled adult care receiver but, the disability, which affected Tamara was not "due to an acute onset".   The Dictionary of Scientific and Technical Terms, McGraw-Hill, Fifth Edition, defines "acute" as ". . . Referring to a disease or disorder of rapid onset, short duration, and pronounced symptoms".   The Tribunal is satisfied that Tamara's disease was not of rapid onset, nor, sadly, is it of short duration.   On 20 March 1998 Dr Polgar diagnosed Tamara as suffering from Crohns disease and depression.   On 16 March 2000 Dr Polgar expressed the opinion that Tamara's care needs were not attributable to "an acute event".   Tamara's fever and fatigue were described as chronic.   Mrs Bienstein told the Tribunal that, towards the end of 1997, Tamara stopped being able to function and she needed full-time care, but prior to that

. . . she needed a lot of help but she was still managing.
. . .
She has a history of being ill with things that could not be explained and lack of energy and so on.   So, in that way, it was not an acute onset . . .  

This evidence persuades the Tribunal that Mrs Bienstein does not fall within clause 17(2)(a) and that the decision under review should be affirmed. Tamara's disability was not due to an "acute event". She became disabled over time, although there reached a point, following her return from Japan in August 1997 and following family stress, that she became bedridden.

I certify that the seventeen [17] preceding paragraphs are a true copy of the reasons for the decision herein of 
Mrs H.E. Hallowes, Senior Member

(sgd)       Catherine Thomas
              Personal Assistant

Date of Hearing:  29.01.01
Date of Decision:  20.04.01
Solicitor for the Applicant:           NIL, IN PERSON

Solicitor for the Respondent        Mr M. Todd, Advocate with Centrelink