Bird and Secretary, Department of Family and Community Services
[2004] AATA 1284
•3 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1284
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/302
GENERAL ADMINISTRATIVE DIVISION
Re: RUSSELL FORSTER BIRD
Applicant
And SECRETARY,
DEPARTMENT OF FAMILY ANDCOMMUNITY SERVICES
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 3 December 2004
Place: Melbourne
Decision:The Tribunal affirms the decision under review, but recommends that the respondent consider an ex gratia payment to the applicant.
(sgd) E.A. Shanahan
Member
SOCIAL SECURITY – carer allowance – misleading information from the respondent with failure to fully inform – request for backdating of eligibility for allowance – application to claim compensation for detriment caused by defective administration under the Compensation for Detriment caused by Defective Administration scheme
Social Security Act 1991 s 954
Social Security (Administration) Act 1999 ss 11, 17, 37
Re Weston and Secretary, Department of Social Security (1991) 22 ALD716
REASONS FOR DECISION
3 December 2004 Miss E.A. Shanahan, Member
This is an application by Russell Forster Bird (the applicant) for review of a decision of the Social Security Appeals Tribunal (the SSAT) dated 23 January 2004. The SSAT affirmed a decision of a Centrelink delegate of the Secretary to the Department of Family and Community Services (the respondent) dated 17 October 2003, which determined that the applicant's eligibility for carer's allowance could not be backdated beyond 31 March 2003. On 7 March 2004 the applicant sought review of the decision by the Administrative Appeals Tribunal.
Mr D. Connell of counsel represented the applicant and Mr S. Meehan, an advocate of the Centrelink Service Recovery Team, represented the respondent. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T19) and the applicant tendered a bundle of documents relating to his communications with Centrelink (Exhibit A1). The applicant gave evidence before the Tribunal.
The applicant's son (Ryan Bird) also lodged an application (V2004/303) against the respondent with the Tribunal. That application was heard and decided on the same day as this application. However, the applicant and Ryan Bird requested separate decisions.
BACKGROUND TO THE APPLICATION
The applicant's son, Ryan Bird (now aged 19), was diagnosed as suffering from lymphoblastic lymphoma (T cell variety) on 16 May 2002 and has been treated with chemotherapy, radiotherapy and stem cell bone marrow transplantation from that date until January 2004. Initially, Ryan underwent surgical procedures to obtain tissue diagnosis. Since the bone marrow transplant Ryan has taken anti‑rejection medication, but has overall done extremely well. Prior to the bone marrow transplant, Ryan had frequent hospital admissions for infective complications of his chemotherapy.
On 16 September 2002 the applicant's wife, Mrs Jolin Bird, contacted Centrelink requesting information regarding any social security payments for which the applicant and Ryan may be eligible. In response, Centrelink sent Mrs Bird a claim form for carer allowance and three information pamphlets/booklets. In a statutory declaration (T11 p54) Mrs Bird states that she telephoned Centrelink approximately one week later, seeking assistance to complete the claim form. Mrs Bird further states that she was told that carer allowance was subject to a means test. As, at that time, the family's income was higher than the threshold amount, she deduced that they would be precluded from qualification for carer allowance. Mrs Bird did not take the matter further.
On 29 September 2003 the applicant attended a Centrelink office to inquire about his eligibility for a carer allowance. He had been unaware of his wife's inquiries 12 months previously. The applicant had been providing care for his son since Ryan had been diagnosed with lymphoma. As a result, his income as a landscape gardener had fallen from a projected $60,000 to $10,000 per annum. The applicant was granted a carer allowance which was backdated, in accordance with the legislative provisions, to 31 March 2003.
The applicant contended that the carer allowance should have been backdated to 26 weeks prior to his wife's inquiry of 16 September 2002, as Centrelink had provided incorrect information and advice at that first inquiry. The applicant applied to the SSAT for review of Centrelink's decision but was unsuccessful. The SSAT advised the applicant to write to the Ombudsman and to seek compensation through the Compensation for Detriment caused by Defective Administration (CDDA) scheme. The application by the applicant for compensation under the CDDA scheme was unsuccessful. The applicant is in the process of placing his application before the Commonwealth Ombudsman.
THE ISSUE BEFORE THE TRIBUNAL
The issue before the Tribunal is whether the applicant was entitled to payment of carer allowance from a date prior to 31 March 2003.
EVIDENCE BEFORE THE TRIBUNAL
Mr Russell Bird
The applicant detailed Ryan's illness, his treatment and his response to treatment. The applicant told the Tribunal that he had taken Ryan to the Austin Hospital, by car, over 100 times in 18 months; visited Ryan daily while he was hospitalised; and cared for him at home. The applicant said he had effectively ceased all work during this period in order to care for his son, who was now much improved. The applicant had recently resumed some work as a landscape gardener. The applicant said that Ryan has been receiving youth allowance since September 2003. The Tribunal asked the applicant what Ryan was doing, having successfully completed his VCE in 2003. The applicant informed the Tribunal that, while Ryan still tired easily, he was able to spend several hours on most days at his old school, assisting with the teaching of media studies. In addition, Ryan had recently obtained his driving licence and was less reliant on his father for transport. The applicant said that Ryan now attends the Bone Marrow Transplant Clinic at The Royal Melbourne Hospital at six‑weekly intervals. He said that since the bone marrow transplant, Ryan has been hospitalised twice for infections.
The Tribunal sought more information regarding the applicant's CDDA application. The applicant said he had been given to believe that this application was likely to be approved. However, the processing of his claim had been delayed by Centrelink for over 14 weeks and then had been rejected. Centrelink had apologised to the applicant for the delay and Mr Meehan (for the respondent) again apologised at the hearing on behalf of Centrelink. He did advise the Tribunal that Ryan's CDDA application to Centrelink had been partially successful.
THE RELEVANT LEGISLATION
Section 954 of the Social Security Act 1991 sets out the qualifications for carer allowance, in respect of care for a disabled adult.
Section 11 Social Security (Administration) Act 1999 (the Act) provides:
11(1) Subject to subsection (2) and Subdivision B, a person who wants to be granted:
(a)a social security payment; or
(b)a concession card;
must make a claim for the payment or card in accordance with this Division.
Clause 17 of Schedule 2 of the Act provides for a carer allowance for a disabled adult:
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.
Section 37(1) of the Act provides:
37(1) Subject to section 40, the Secretary must determine that a claim for a social security payment is to be granted if the Secretary is satisfied that:
(a)the claimant is qualified for the social security payment; and
(b)the social security payment is payable.
SUBMISSIONS
The applicant submitted that he should not be punished for the respondent's administrative errors in supplying misleading or negligent advice, nor should the respondent's delegates benefit from their own wrongdoing.
The respondent conceded that the applicant had qualified for carer allowance from May 2002, but argued that s 11 of the Act requires that a claim for carer allowance be in writing on the approved application form. As the formal claim was lodged on 30 September 2003, Schedule 2 of the Act limits the backdating of this claim to 31 March 2003, which is the first day of the period of 26 weeks ending immediately before the day on which the claim was made. The Act does not contain any provision to backdate the claim beyond this date.
TRIBUNAL'S DELIBERATIONS
The Tribunal notes the respondent's concession that the applicant had qualified for the allowance from 16 May 2002. However, there are no legislative provisions which will permit the Tribunal to backdate the applicant's carer allowance beyond 31 March 2003.
The Tribunal has encouraged the applicant to formally contact the Commonwealth Ombudsman.
The Tribunal affirms the decision under review but recommends that the respondent consider an ex gratia payment, as was recommended by the Tribunal in Re Weston and Secretary, Department of Social Security (1991) 22 ALD716.
I certify that the nineteen [19] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Catherine Thomas
Clerk
Date of Hearing: 28 October 2004
Date of Decision: 3 December 2004
Counsel for the applicant: Mr C. Thomson
Solicitor for the applicant: NILAdvocate for the respondent: Mr S. Meehan, Centrelink
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