Bridge and Department of Family and Community Services

[2000] AATA 1075

DECISION AND REASONS FOR DECISION [2000] AATA 1075

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N1999/1972

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      PETER BRIDGE    
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Dr J D Campbell, Member 

Date7 December 2000

PlaceSydney

Decision      The Tribunal affirms the decision under review.

[Sgd] Dr J D Campbell
  Member
CATCHWORDS
Social Security – carer's payment – newstart allowance – gaps in payment – issue of documentation – incorrect advice
Social Security Act 1991, sections 200, 201, 202, 203, 204, 205 and 615

REASONS FOR DECISION

Dr J D Campbell  Member           

1. Mr Peter Bridge ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal dated 12 November 1999, which affirmed the decision dated 27 July 1999 of a Centrelink delegate of the Secretary of the Department of Family and Community Services ("the Respondent").  In this latter decision, which was varied in part by an authorised review officer in a decision dated 12 October 1999, it was found that arrears of carer's payments could only be paid from 9 July 1999 and that while the gaps in payment of newstart allowance had occurred, payment could only be made for the period 27 May 1997 to 2 June 1997.

2. A hearing was held before the Tribunal on 14 June 2000 at which the self represented Applicant gave evidence.  The Respondent was represented by Ms Buckley, an advocate from the advocacy and administrative law section of Centrelink.

3. The following material was produced in evidence before the Tribunal:
   Exhibit No.   Description 
   T1 –19 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, pp1-109
   A1      Statutory declaration of Ms Zozuk, dated 20 January 2000    
   A2      Bundle of documents including Commonwealth Bank statements of Applicant      
   R1      Respondent's statement of facts and contentions, dated 7 May 2000.         

Issues:

1. The relevant issues in this matter are:

   (a) whether a carer's payment to Mr Bridge for periods earlier than 9 July 1999; and

   (b) whether there have been periods of time in which Mr Bridge has not been paid his total entitlement of newstart allowance.

Legislation:

1. The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular sections 200, 201, 202, 203, 204, 205, 615.
   Background

2. The Applicant completed a claim for carer's payment on 9 July 1999 and lodged the claim at the Shellharbour Centrelink office on the same day (T12).  The claim was granted with payment commencing from 9 July 1999.  On 23 July 1999 the Applicant enquired as to the whereabouts of the claims lodged for a carer's payment at the Braddon Centrelink office in July/August 1997, and perhaps at the Redcliffe office in October/November 1998.  Following a particular search for files in both offices, the Centrelink officer at Shellharbour concluded that, in the absence of any documentation on a carer's application being located in either the Braddon Centrelink office (where no file could be located) or the Redcliffe Centrelink office, carer's payment could only be paid to the Applicant commencing 9 July 1999 (T14).

3. In terms of the issue of gaps in the newstart allowance payments, three periods were identified by the authorised review officer, namely:

   - 27 May 1997 to 2 June 1997;
   - 17 June 1997 to 22 June 1997;
   - 29 July 1997 to 5 August 1997.

1. In relation to the period 27 May 1997 to 2 June 1997, a payment of $160.75 was made by the Respondent on 15 October 1999.  In relation to the period 17 June 1997 to 22 June 1997, the authorised review officer, after review of the electronic records, considered that the back payment could not be made for this period as the Applicant had voluntarily surrendered his payment to newstart allowance (T5, p84).  The Social Security Appeals Tribunal considered that the Applicant had been given incorrect advice at this time in relation to the issue of the two week time frame which had to elapse before the Applicant could reclaim benefits following such a voluntary surrender (T5, p34 and T7, p36).  As a consequence the Social Security Appeals Tribunal made a recommendation that the Applicant be compensated for financial detriment due to incorrect advice for the period 17 June 1997 to 22 June inclusive.  Further for the period 29 July 1997 to 5 August 1997, the authorised review officer and the Social Security Appeals Tribunal found that the Applicant had requested cancellation of his newstart allowance; that he had been advised of previous incorrect advice in relation to the issue of reclaiming the newstart allowance (T7, p36); that he had lodged a claim by way of a statement attached to an abridged claim for newstart allowance on 6 August 1997 (T3); that the allowance was paid from date of lodgement and that no entitlement existed for payment for the period 29 July 1997 to 5 August 1997.
   Applicant's evidence:

2. The Applicant stated that he was in Adelaide in 1996 following the collapse of his engineering business and the failure of his marriage when he first met Ms Zozuk.  In mid 1996, when the Applicant had only recently met Ms Zozuk, the latter was living in Elizabeth with her two small children and, in the Applicant's view, most unsatisfactory circumstances.  The Applicant considered that Ms Zozuk had been abused as a child, was frail minded, was using drugs and that she had experienced periods of post natal depression.  The Applicant stated that by June 1996 he was staying at Ms Zozuk's house and trying to care for her and her two children, and that over that period until April 1998 he did his best to assist in their care and rehabilitation and reconciliation with her family although this was unsuccessful.

3. The Applicant stated that in mid 1997 he, together with Ms Zozuk, travelled to Canberra in an attempt to resolve issues with Centrelink over child support payments to his ex-wife and Ms Zozuk's apparent debt issues with the Taxation department.  The Applicant and Mrs Zozuk also used this trip to meet with his solicitors.  The Applicant stated that at this time, in a meeting with Centrelink staff in an attempt to secure a carer's payment, he was advised to get a doctor's certificate concerning Mrs Zozuk.  At a future meeting, where he understood that all matters would be resolved, he was kept inside the building waiting for a lengthy period, after which a fracas occurred in which verbal abuse was exchanged.  As a consequence the Applicant stated that nothing was resolved.

4. The Applicant further stated that he and Ms Zozuk left Adelaide in April 1998 and travelled initially to New South Wales.  They then moved to Queensland in October 1998 because both he and Mrs Zozuk were concerned for the welfare of Mrs Zozuk's elder son aged 6, who had been placed in the care of Ms Zozuk's parents in 1996.  Ms Zozuk's parents had moved, with her son, from Adelaide to Queensland.  In an effort to resolve their continuing difficulties with Centrelink, the Applicant met with Mr Aitken at the Redcliffe Centrelink office on numerous occasions from October 1998 until 29 January 1999.  On the later date, an altercation occurred between the Applicant and Mr Aitken, with the Applicant making a complaint to the police on 1 February 1999.  As a result of this altercation, the Applicant stated that he was banned from physically attending Centrelink offices for a period of six to twelve months.  During his time in Queensland, the Applicant believed he applied for a carer's payment, and that he had received advice from a Mr Farrell at the Leichhardt Centrelink office in Sydney that he was entitled to be paid such an allowance.

5. The Applicant stated that on his return to New South Wales on 25 May 1999 he attended the Shellharbour Centrelink office to make enquires about a disability support pension for Ms Zozuk and a carer's payment for himself.  An appointment for 26 May 1999 was cancelled as Ms Zozuk had to attend a counselling session, and a future appointment made for 9 July 1999, with Ms Zozuk's disability support pension being paid from 25 May 1999 and the Applicant's carer's payment from 9 July 1999.

6. The Applicant indicated that Ms Zozuk had four children, two of whom were boys aged six and four, and two daughters born after the Applicant commenced caring for her.  Of the four children, the eldest son was living with Ms Zozak's parents, the younger was living in a caring fostered environment, the eldest daughter (aged three) had been made a state ward in NSW and the youngest (six months) was living with Ms Zozuk.  The Applicant stated that appropriate living arrangements and responsibilities had been agreed upon, and that Ms Zozuk continued to receive appropriate psychiatric and counselling services.
   Submissions:

7. The Applicant submitted that he believed he had applied for a carer's pension payment when he came to Canberra in mid 1997, and stated again that he raised many issues for resolution when he attended the Redcliffe Centrelink office in October/November 1998.  Further he believed that with carer's payment eventually being granted with date of effect being 9 July 1999, the payment should have been backdated to that period or at least to 25 May 1999, the day on which he attended the Shellharbour Centrelink office.  Similarly the Applicant believes he had to spend significant time and effort in order that he receive his appropriate amount of newstart allowance, and that a quantum is still owing.

8. The Respondent contended that there was no record of an application for a carer's pension until an application was lodged on 9 July 1999 and that payment was granted from this day.  The Respondent stated that a diligent search of the Applicant's files at Braddon (ACT), Redcliffe (Qld), Balmain (NSW) and Shell Harbour (NSW) had failed to reveal any evidence of an earlier application for carer's pension or any correspondence relating to such a claim.  In relation to the issue of gaps in payment of newstart allowance, the Respondent submitted that in relation to the gaps identified, payment had been made for the period 27 May 1997 to 2 June 1997; that it was their understanding that payment by way of compensation for financial detriment would be forthcoming for the period 17 June 1997 to 22 June 1997 and that the absence of payment for the period 29 July 1997 to 5 August 1997 was appropriate, in view of the Applicant having voluntarily suspended his newstart allowance and not lodging an application for renewal until 6 August 1997.
   Consideration and findings:

9. In preliminary comment the Tribunal notes the circumstances confronting the Applicant in both his previous commercial business and his interpersonal and personal life experiences.  The Tribunal also notes the difficulties the Applicant has experienced in trying to deal with the circumstances.

10. In assessing evidence before the Tribunal, the Tribunal makes the following findings of fact:
    (a) The Applicant met Ms Zozuk in Adelaide in mid 1996 at a point in time when the Applicant was seeking to unravel the causes for the failure of his previously successful engineering business.
    (b) At this time and continuing, Ms Zozuk had a significant mental health disability that required counselling and psychiatric assistance.
    (c) From a point in time in mid 1996 to early 1997, the Applicant took it upon himself to assist in the care and welfare of Ms Zozuk.
    (d) In mid 1997 the Applicant and Ms Zozuk did travel to Canberra in an attempt to solve a multitude of ongoing problems relating to child care support payments, taxation, bank statements, overpayment of family allowance and other social service matters.
    (e) An episode did occur at the Braddon Centrelink office in which the Applicant believed his problems were not being resolved in a timely or proper manner and that difficulties were experienced by both parties.
    (f) The Applicant and Ms Zozuk did relocate to Brisbane in October 1998 because of particular concerns for Ms Zozuk's eldest son's welfare.  That while seeking to work through their many difficulties, and while at the same time seeking and receiving psychiatric care for Ms Zozuk, the Applicant, frustrated by the slowness of progress, and Mr Aitken, a Centrelink officer at Redcliffe, did have an altercation on 29 January 1999.  This resulted in the Applicant being barred from physical attendance at a Centrelink office in Queensland for six months, and the Applicant and Mrs Zozuk sleeping on the streets for three to four days.
    (g) The Applicant and Ms Zozuk did attend at the Shellharbour Centrelink office on 25 May 1999, made an appointment for 26 May 1999 and had to cancel that appointment because of Ms Zozuk's counselling appointment on 26 May 1999.  They made a future appointment when they lodged an application for carer's payment on 9 July 1999.
    (h) In view of all documentation presented to the Tribunal, there is no evidence on the Respondent's files that an application for carer's payment by the Applicant was made at a date earlier than 9 July 1999.  Further in arriving at such a finding of fact, the Tribunal has relied upon the advice rendered by the Respondent that a diligent search of the Applicant's files at Braddon, Balmain, Radcliffe and Shellharbour Centrelink offices failed to reveal any material which indicated an application for a carer's payment had been lodged by the Applicant prior to 9 July 1999.

11. Further advice was also given to the Tribunal that payment of newstart allowance for the period 17 June 1997 to 22 June 1997 had been effected, by way of compensation, for financial detriment experienced by the Applicant as a consequence of wrongful advice rendered to the Applicant on 16 June 1997.

12. In turning to the issue of carer's payment, the Tribunal notes the statutory framework, which provides in the following sections of the Act:

    "200. A carer payment is not payable to a person before the person's provisional commencement day (identified under section 201).
    General Rule
    201.(1) Subject to subsections (2) and (3), a person's provisional commencement day is the day on which the person claims the carer payment.
    Initial Incorrect or Inappropriate claim followed by claim for carer payment
    201.(2) If:

    (a) a person makes a claim (in this subsection called the "initial claim") for:

    (i)  a social security or service pension, a social security benefit or a parenting payment; or
    (ii)  a pension, allowance, benefit or other payment under another Act, or under a program administered by the Commonwealth, that is similar in character to a carer payment; and

    (b) on the day on which the person makes the initial claim, the person is qualified for a carer payment; and
    (c) the person subsequently makes a claim for a carer payment; and
    (d) the Secretary is satisfied that it is reasonable for this subsection to apply to the person;

    the person's provisional commencement day is the day on which the person made the initial claim.
    Early Claim
    201.(3) If:

    (a) a person lodges a claim for a carer payment; and
    (b) the person is not, on the day on which the claim is lodged qualified for a carer payment; and
    (c) the person becomes qualified for a carer payment sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;

    the person's provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia.

1. Further the Tribunal notes subsection 201AA of the Act which provides for a person making an initial claim by telephone, facsimile or computer, requiring that the Respondent gives the person a written notice acknowledging the contact in relation to the making of such a claim and that the person must lodge the claim within 21 days of making contact.

2. The Tribunal also notes section 203 of the Act (need for a claim), section 204 (form of claim) and section 205 (lodgement of claim).

3. In considering the facts found earlier in this decision against the statutory framework, the Tribunal finds that the Applicant has been paid his carer's payment from the correct date on 9 July 1999.  In so finding the Tribunal is mindful that no application/claim had been lodged prior to this date and that any verbal claim made on 25 May 1999 must fail for want of lodgement of the claim form within 21 days of that date.

4. In relation to the issue of gaps in payment of newstart allowance, the Tribunal observes that the only gap in contention relates to the period 29 July 1997 to 5 August 1997. Further the Tribunal notes that the non-payment period arose as a consequence of a voluntary surrender by the Applicant as he had hoped to assume self-employment. His statement of 6 August 1997 was deemed to be an effective claim for newstart allowance. In these circumstances, the Tribunal finds that the Applicant was not entitled to payment during the period 29 July 1997 to 5 August 1997, with the date of commencement of newstart allowance being 6 August 1999, pursuant to section 615 of the Act.

5. In relation to the period 17 June 1997 to 22 June 1997, the Tribunal does confirm that erroneous advice was given to the Applicant on 16 June 1997 and that such advice was corrected prior to the period commencing 29 July 1997.  As already stated, compensation for the wrong advice has already been paid by the Respondent and this is acknowledged by the Tribunal.

6. Finally, and by way of comment, the Tribunal would wish to acknowledge the difficulties inherent in this matter.  It is evident to the Tribunal that the Applicant has experienced some years of difficult circumstances and his approach to dealing with his circumstances and obligations appear to create difficulties for others in dealing with his problems.  In the Tribunal's experience the story that unfolded during the hearing was typical of an individual experiencing significant episodic elevations of activity, accompanied by periods of frustration when others are unable to respond.  Opening doors to appropriate counselling and other like therapy may be of a greater assistance to resolving issues in the future.

7. The Tribunal affirms the decision under review.

   I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for the decision herein of:

   Dr J D Campbell, Member

   Signed:         .....................................................................................
     Associate

   Date of Hearing  14 June 2000
   Date of Decision  7 December 2000
   Self-represented Applicant

   Advocate for the Respondent        Ms M Buckley