Candace Garside and Secretary, Department of Social Services
[2014] AATA 489
•17 July 2014
[2014] AATA 489
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/0868
Re
Candace Garside
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 17 July 2014 Place Grafton The decision under review is affirmed.
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Senior Member Bernard J McCabe
CATCHWORDS
FAMILY ASSISTANCE AND SOCIAL SECURITY – Applications for Carer Allowance and Carer Payment – Medical evidence confirms applicant’s entitlement – Dispute over date of entitlement – Claim for Carer Allowance effective from day on which applicant asked for review of rejection decision – Claim for Carer Allowance effective from day on which applicant lodged second claim form that was ultimately accepted – Decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth) s 954
Social Security (Administration) Act 1991 (Cth) ss 13; 107; 237
CASES
Fisher and Secretary, Department of Social Services [2014] AATA 488
REASONS FOR DECISION
Senior Member Bernard J McCabe
17 July 2014
Ms Candace Garside applied for the Carer Allowance and Carer Payment. While the Secretary of the Department of Social Services accepted her claims on
10 December 2013, a dispute then arose over the date on which Ms Garside became entitled. But events have moved on. The Secretary now says Ms Garside is not entitled to receive the payments because the evidence provided by her doctor in support of the application does not suggest the person she cares for meets the criteria. The whole dispute has now come before the Tribunal.
I am satisfied Ms Garside is entitled to receive both the Carer Allowance and the
Carer Payment. I am also satisfied her entitlement should commence on 4 October 2013 and 1 November 2013 (respectively). That means the Tribunal affirms the decision of the Social Security Appeals Tribunal.
BACKGROUND
Ms Garside is the partner of Mr Anthony Fisher. Mr Fisher experiences a number of serious health conditions, and he does not work as a consequence. Ms Garside says she needs to take care of Mr Fisher on a full-time basis. Mr Fisher’s health conditions were described in the course of my reasons in Fisher and Secretary, Department of Social Services [2014] AATA 488. The parties agreed I was entitled to refer to evidence tendered in those proceedings for the purposes of deciding Ms Garside’s claim.
In summary, the evidence in Fisher established Mr Fisher suffered from a serious psychiatric condition that has been described as attention deficit hyperactivity disorder (ADHD), a hearing loss condition, and a pilonidal sinus condition. He does not work, and he has not worked for some time. In the absence of effective intervention, he is unlikely to work in the foreseeable future. Ms Garside said Mr Fisher could not be left unsupervised and they both referred to instances of self-harm.
I will deal with the question of entitlement before turning to the issue of the date upon which that entitlement commenced.
The Secretary says the dispute over entitlement arises because of the information provided by the family doctor, Dr Mupudzi, in support of a claim for Carer Allowance lodged on 26 April 2013. Ms Garside also completed a questionnaire that formed part of the Adult Disability Assessment Tool (ADAT) which the Secretary is required to use in order to assess the claim. Dr Mupudzi’s report listed “hearing loss” as the condition that resulted in Mr Fisher requiring care. The claim was subsequently rejected on
10 June 2013 on the basis that Mr Fisher’s care needs were not sufficiently onerous to justify an award of the Carer Allowance.
Ms Garside says she was unaware the claim had been rejected until she spoke with a Centrelink officer on or about 4 October 2013. She asked for a review of the decision on 14 October 2013. She also contacted Centrelink on that date to inquire about
Carer Payment.
Ms Garside gave evidence at the hearing. She explained she had in fact filed an application for Carer Payment at the same time as she had filed an application for
Carer Allowance. On her evidence, the claim form relating to Carer Payment must have been lost by Centrelink. She subsequently lodged a claim for Carer Allowance and
Carer Payment on 1 November 2013. She completed the ADAT questionnaire and subsequently provided a medical report by her family’s new general practitioner,
Dr Alwan, dated 29 October 2013. An updated medical report by Dr Alwan was provided on 6 December 2013 after an Authorised Review Officer examined the original claim for Carer Allowance and concluded Mr Fisher’s health conditions did not result in a sufficiently high score as assessed by his treating health professional – which meant the claim failed pursuant to s 954 of the Social Security Act 1991 (Cth).
The Authorised Review Officer reconsidered the decision in relation to Carer Allowance in light of the evidence contained in Dr Alwan’s report. It was decided on
10 December 2013 that the claim should be granted – but only from 4 October 2013.
On 20 January 2014, the claim for Carer Payment was also granted, effective from
1 November 2013. I will have more to say about those dates in due course.
ENTITLEMENT TO CARER ALLOWANCE AND CARER PAYMENT
The Secretary now says I should revisit the question of entitlement. I was told the earlier report of Dr Mupudzi should be preferred in light of the fact it was consistent with
Ms Garside’s own comments in the questionnaire which appeared to suggest Mr Fisher’s problems were not especially serious.
Ms Garside says her comments in the questionnaire appeared to make Mr Fisher’s problems less pressing because she was operating under a misunderstanding when she completed the form. She said she thought she was supposed to describe Mr Fisher’s situation on the basis she was present and actively involved in his supervision and care. She said she is able to effectively manage Mr Fisher and attend to his needs if she is constantly available to him. She explained she did not realise she needed to describe
Mr Fisher’s needs on the assumption she was not meeting them. She added that
Dr Mupudzi did not appear to be across all of Mr Fisher’s medical records, although she conceded he was aware of Mr Fisher’s ADHD condition, amongst other things.
I am inclined to accept Ms Garside’s explanation for her approach to the questionnaire. Enough evidence has emerged in the course of the hearing (and in the course of Mr Fisher’s separate hearing) to satisfy me Mr Fisher has experienced serious long-term problems that extend beyond hearing loss. Ms Garside was clearly aware of those problems and saw them as significant problems. She had no reason to downplay them. I am unable to explain why Dr Mupudzi did not refer to those issues, whereas Dr Alwan has clearly taken great care in the preparation of her reports. I was told Dr Alwan refused to complete her contribution until she had the opportunity to review all of the records. I think her report dated 6 December 2013 should be used in the assessment of both claims. I have no reason to dispute the conclusion of the Authorised Review Officer that the use of the report suggests the applicant is eligible to receive both payments.
COMMENCEMENT OF CARER ALLOWANCE AND CARER PAYMENT
That leaves only the question of when the entitlements should commence. I have already noted the Authorised Review Officer concluded Carer Allowance should be paid from
4 October 2013 rather than from the date on which the claim was lodged. He reached that view because the applicant had failed to apply for a review of the original decision within 13 weeks: s 107, Social Security (Administration) Act 1991 (Cth) (“the Administration Act”). The applicant, for her part, said she was not aware of the original decision.
Mr Burgess, who appeared for the respondent, pointed out s 237 of the Administration Act provides that notice of a decision that is sent by prepaid post to the postal address of the applicant is taken to be given to that person on the date on which the letter should have arrived. I was told the letter containing the notice was dispatched to the applicant on 10 June 2013 – but the applicant did not approach Centrelink until early October, some 16 weeks after the date on which she is deemed to have been informed of the decision. The effect of s 107 in those circumstances is clear, I was told: the applicant’s approach was too late and cannot be backdated.
Sadly for the applicant, Mr Burgess is right about the combined effect of ss 107 and 237. There is no discretion to waive the requirement. That means the earliest date on which the applicant became entitled to Carer Allowance is 4 October 2013.
What of the applicant’s claim for Carer Payment? The Authorised Review Officer said it was payable from 1 November 2013. It was conceded the applicant had approached Centrelink about Carer Payment on or before 14 October but she did not lodge a form within 14 days of that contact. (If she had done so within 14 days, s 13(1) of the Administration Act permits the entitlement to be backdated to the date of the first contact.) The form was finally lodged on 1 November 2013.
The applicant says she recalls lodging a Carer Payment claim form around the same time as the Carer Allowance form. Unfortunately, there is no record of that occurring.
If Ms Garside is right and Centrelink has lost a claim form, she may make a claim for defective administration. That is not something that can be dealt with here. For now, I must proceed on the basis of the documentation before me. That documentation makes it clear the earliest possible date from which the applicant can be paid Carer Payment is
1 November 2013, which is the date on which she lodged the claim form that was ultimately accepted.
CONCLUSION
The decision under review is affirmed.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe
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Associate
Dated 17 July 2014
Date(s) of hearing 27 June 2014 Applicant In person Solicitors for the Respondent Sparke Helmore Lawyers
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