Chedyak and Secretary, Department of Social Services (Social services second review) - [2022] AATA 4371

Chedyak and Secretary, Department of Social Services (Social services second review) [2022] AATA 4371 (5 December 2022)
Division:GENERAL DIVISION
File Number(s): 2022/2901
Re:Botros Mikhail Chedyak
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:Chris Puplick AM, Senior Member
Date:5 December 2022
Place:Sydney

The decision under review is affirmed.
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Chris Puplick AM, Senior Member
Catchwords
SOCIAL SECURITY – carer allowance – applicant currently paid carer allowance at single rate – whether Applicant was entitled to arrears at the higher single rate from an earlier date – applicant did not make an application within 13-week period of decision that he was a member of a couple from that earlier date – decision affirmed
Legislation
Social Security (Administration) Act 1999 (Cth) ss 13, 147
Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018 (Cth) s 5
Cases
Cheung v Administrative Appeals Tribunal [2009] FCA 241
Travers and Secretary, Department of Social Services [2020] AATA 5182
REASONS FOR DECISION
Chris Puplick AM, Senior Member
5 December 2022

This is an application involving the, at one time intersecting and at other times, parallel lives of two people, married for many years, who separated and then found that the way in which they were treated by the Respondent (Secretary, Department of Social Services) differed markedly, leaving one satisfied with the outcome and the other seriously aggrieved.
The Applicant is Mr Botros Chedyak and his former wife is Ms Tonia Chedyak.
It will be helpful to set out the relevant narrative in the form of a parallel table of the dealings of each by and with the Respondent:

Mr Botros Chedyak

Ms Tonia Chedyak

10 October 1999 – Applicant marries Ms Tonia Chedyak.

10 October 1999 – Ms Chedyak marries Mr Botros Chedyak.

Unknown date – She is granted Disability Support Pension (DSP).

2011 – He is granted Carer Allowance in respect of Ms Chedyak.

23 May 2017 – Couple separate but continue to live under one roof.

23 May 2017 – Couple separate but continue to live under one roof.

9 June 2017 – She applies to be considered as separated under one roof. Department fails to act or make a decision on the application.

19 November 2021 – Parties divorce.

19 November 2021 – Parties divorce.

15 December 2020 – He applies to be considered as separated under one roof.

15 December 2020 – She applies to be considered as separated under one roof.

21 December 2020 – Agency decides Applicant not a member of a couple from 21 December 2020.

8 January 2021 – She applies for review of decision claiming to have been not a member of a couple from 23 May 2017.

14 January 2021 – Authorised Review Officer (ARO) sets aside the decision and determines that Applicant was a member of a couple from 23 May 2017.

8 February 2021 – She requests review of ARO decision by the Social Services and Child Support Division of this Tribunal (AAT1).

2 June 2021 – AAT1 determines that Ms Chedyak was not a member of a couple from 21 December 2020 and paid her arrears of DSP at single rate from this date.

18 June 2021 – Applicant began to receive Carer Allowance at single rate.

23 November 2021 – the Agency and Ms Chedyak entered into a consent agreement accepting that she had been separated from the Applicant as from 23 May 2017 and that her DSP payments were to be reassessed on that basis.

3 February 2022 – Applicant lodged appeal with AAT1 to review date of his eligibility for payment at single rate claiming that it should be backdated to 23 May 2017.

24 March 2022 – AAT1 determined that Applicant was not a member of a couple from 23 May 2017 but was not eligible for payment of arrears as application lodged outside the 13-week statutory period proscribed.

7 April 2022 – Applicant lodged appeal against AAT1 decision with this Tribunal.

31 October 2022 – Matter heard in this Tribunal and adjourned with request for Respondent to provide additional information to Tribunal.

There are number of matters to be noted following from the above narrative:
(a)There was a failure on the part of the Respondent to make a decision on Ms Chedyak’s MODS form of 9 June 2017. The Department’s records are clear that this form was received on 9 June 2017.[1] In evidence to the Tribunal, the Respondent’s representative offered by way of explanation that the Department had requested further information from Ms Chedyak but that this was not forthcoming. Two matters arise from this. In the first instance, the acknowledgement of a MODS (notice of separation) form apparently filed on 9 June 2017 by Ms Chedyak is attached to a MODS form actually dated 1 July 2017. This suggests the Respondent’s proffered explanation may be confused.[2] Secondly, even if further information was not forthcoming the Department was obliged, by law, to make a decision one way or another. It did not. It failed to do so.
(b)The Applicant himself never applied for payment of the Carer Allowance at the single rate. This flowed automatically from the decision of the AAT1 on 2 June 2020 establishing that the Applicant was no longer a member of a couple from 21 December 2020.[3]
(c)The Applicant was entitled to believe that his social security payments would be altered in line with any alteration made to those of Ms Chedyak where the same material facts were established. This is because on 14 January 2021 the Department wrote to him advising that (emphasis added):
“I have asked that your and Tonia’s records be linked and that you be paid at the partnered rate.”[4]
[1] T-documents at 44.
[2] Ibid at 45-48.
[3] Cheung v Administrative Appeals Tribunal [2009] FCA 241.
[4] T-documents at 95.
It is now not a matter of dispute that the Applicant and Ms Chedyak were separated as from 23 May 2017. In its Statement of Facts, Issues and Contentions (SFIC) the Respondent concedes (at [26]):
“The Secretary accepts that the AAT1 was correct in determining that the Applicant had separated from Ms Chedyak from 23 May 2017 and therefore was not a member of a couple from that point onwards. A decision by consent was entered into between the Agency and Ms Chedyak on 23 November 2021 in a separate matter, where it was agreed between the parties that Ms Chedyak had separated from the Applicant from 23 May 2017.”
The Secretary however contends that while the Applicant is entitled to be paid at the single rate of Carer Allowance as from 18 June 2021 (as per the AAT1 decision), unlike Ms Chedyak he is not entitled to be paid any arrears back to the date of the actual establishment of his single status, being 23 May 2017.
This is because the Applicant failed to apply for payment of arrears within the 13-week period prescribed in section 147 item (8) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
The decision in question was notified to the Applicant by letter dated 14 January 2021. The penultimate paragraph of that letter reads:
“It is important to ask for a review within 13 weeks of being notified about the decision. If your request for a review is more than 13 weeks after being notified and the decision can be changed, you may only receive your entitlement from the date you requested the review.”[5]
[5] Ibid at 99. Emphasis in original.
Although there might be some issue about the address to which the letter was addressed (arising from an updated change notified to the Department on 11 June 2021)[6] the Tribunal accepts that it must be taken that the Applicant was properly notified of the Departmental decision.[7] In any event, receipt of the letter is not contested by the Applicant.
[6] Ibid at 125.
[7] Social Security (Administration) Act 1999 (Cth) s 237; Evidence Act 1995 (Cth) s 163.
Time limits imposed by legislation cannot be ignored as they serve an important public purpose and provide for the orderly administration of process of government.[8] The Respondent’s SFIC (at [47]-[52]) sets out the clear authorities affirming this principle, including a decision by this Tribunal in which, on exactly this point, I said:
29. Nevertheless, once that determination was made the Applicant took her opportunity to have the determination reviewed by an ARO. When that decision was unfavourable to her she again had an opportunity to apply for a review at the AAT1 within 13 weeks of her being notified of the decision. Unfortunately, she failed to do so…
33. Unfortunately for the Applicant, that is the way the legislation works and there is no discretion vested either in the original decision-maker, the ARO or indeed this Tribunal to disregard the provisions of the Act or the Administration Act, or to invent a mechanism to produce a result which is otherwise precluded by the legislation.[9]
[8] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552-553.
[9] Travers and Secretary, Department of Social Services [2020] AATA 5182.
There are however, fundamentally different circumstances in this application:
(a)the Department failed in its statutory duty to make a decision on the application of Ms Chedyak to be considered separated which was lodged on 9 June 2017, shortly after she and the Applicant had separated on 23 May 2017;
(b)on 1 July 2017 Ms Chedyak provided a MODS form notifying the Department of her separation from the Applicant;
(c)by consent (on 23 November 2021) the Respondent and Ms Chedyak agreed that she and the Applicant had ceased to be a couple as from 23 May 2017;[10]
(d)it follows that the Department equally accepted that the Applicant was not a member of a couple as from 23 May 2017;
(e)the Department made arrangements to reassess Ms Chedyak’s DSP as from 23 May 2017;
(f)the Department advised the Applicant, in a later matter, that his file and that of Ms Chedyak had been “linked” for the express purpose of determining his eligibility for Carers Payment;
(g)once the decision of the AAT1 was made express on 24 March 2022, the Department became aware on a second occasion that the Applicant was not a member of a couple as from 23 May 2017 and again it follows that this establishes an entitlement on his behalf to have his Carer Payment reassessed; and
(h)the Department adjusted the rate of the Applicant’s Carer Payment on 18 June 2021[11] without the Applicant making an application for such an adjustment. It followed automatically from the AAT1 decision.
[10] The Applicant provided a copy of agreement dated 16 November 2021, effective 23 November 2021. See also Respondent’s SFIC at [26].
[11] Annexure C to Respondent’s SFIC.
The question arises – given that the Respondent knew that the Applicant was not a member of a couple from 23 May 2017 and that he was entitled to payment of Carer Allowance, why did it not adjust his payment accordingly?
This was the point reached by the Tribunal at its hearing on 31 October 2022 and in order to assist it in the resolution of the issue, the Tribunal directed that the Respondent provide a further written submission which was received on 16 November 2022. The Tribunal is grateful for this further advice.
The Respondent’s position is simply that subsection 13(3A) of the Administration Act is expressly limited to making a claim for a social security benefit within certain specified time limits (emphasis added):
(3A) 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
(aa) the person is, on the day on which the Department is contacted, included in a class of persons determined in an instrument under section 14A; and
(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(d)the person lodges a claim for the social security payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and
(e)the Secretary is satisfied that, in the special circumstances of the case, it was not reasonably practicable for the person to lodge the claim earlier; the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
The Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018 (Cth) (the Determination) relates directly to section 13 of the Administration Act when it provides in section 5 (emphasis added):
5 Class of persons to whom sections 13 and 14 of the Act apply
For the purposes of paragraphs 13(1)(aa), (2)(aa), (3)(aa) and (3A)(aa) and 14(1)(aa), (2)(aa), (3)(aa) and (3A)(aa) of the Act, a person is in a class of persons if the person is unable to lodge a claim on the contact day because, at any time during the relevant period, the person is:
…
(k) subject to other special circumstances beyond the person’s control.
The Tribunal accepts the Respondent’s submission that this section of the Determination does not cover the circumstances of this application where the issue is related to the (higher) rate of payment rather than the matter of eligibility.
The Tribunal notes that the Respondent challenges the Tribunal’s view that it (the Department) failed to act on Ms Chedyak’s applications of 9 June 2017 and 15 December 2017, because they were not “claims for a social security payment” (as defined in section 23 of the Social Security Act 1991 (Cth)) but rather claims for a different rate of social security payment.[12] Even were that to be the case, the Department still failed to act upon the advice it was provided on those occasions when it was obliged to do so as a matter of proper administration.
[12] Respondent’s Further Submissions at [16]-[20].
Mr Chedyak acted upon the basis that his rate of payment was dependent on his status vis-à-vis Ms Chedyak and that once the Department had determined that her status had changed, noting that their records were “linked”, he had a right to assume that his would be also. That is a self-evident proposition.
Equally, Mr Chedyak’s belief that he was, as a result of the Department noting his ex-partner’s circumstances, not required to do anything further by way of notification, was an entirely rational belief and easily understood. After all, once the AAT1 had decided that Ms Chedyak was not a member of a couple with the Applicant on 2 June 2021,[13] his Carer’s payment was adjusted on 18 June 2021 without him having to take any action himself.
[13] Review no. 2021/S158360.
Self-evident propositions and rational beliefs must however give way to and be overborne by the express requirements of legislation.
No matter what degree of sympathy the Tribunal may have for Mr Chedyak and his position, and notwithstanding that he should actually have been entitled to receive the Carer Payment at a higher rate as from the separation date of 23 May 2017, he can only be granted it as from the date of his application effective from 3 February 2022.
Put starkly – an applicant must submit an application for a variation in a rate of payment regardless of how self-evident it is that the rate should be varied. In the absence of an application, the Department is not required to make a variation determination. No claim must result in no payment.
The Applicant failed to make a claim within the prescribed period, having been notified of the ARO’s decision of 14 January 2021.
In the passages from my own determination in Travers (set out above) I indicated that the Tribunal has no power “to disregard the provisions of the Act or the Administration Act, or to invent a mechanism to produce a result which is otherwise precluded by the legislation.”
DECISION
The decision under review is affirmed.

I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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Associate
Dated: 5 December 2022

Date(s) of hearing: 31 October 2022

Date final submissions received: 16 November 2022

Applicant: In person

Solicitors for the Respondent: Mr T Chang, Services Australia

Mr Botros Chedyak	Ms Tonia Chedyak
10 October 1999 – Applicant marries Ms Tonia Chedyak.	10 October 1999 – Ms Chedyak marries Mr Botros Chedyak.
Unknown date – She is granted Disability Support Pension (DSP).
2011 – He is granted Carer Allowance in respect of Ms Chedyak.
23 May 2017 – Couple separate but continue to live under one roof.	23 May 2017 – Couple separate but continue to live under one roof.
9 June 2017 – She applies to be considered as separated under one roof. Department fails to act or make a decision on the application.
19 November 2021 – Parties divorce.	19 November 2021 – Parties divorce.
15 December 2020 – He applies to be considered as separated under one roof.	15 December 2020 – She applies to be considered as separated under one roof.
21 December 2020 – Agency decides Applicant not a member of a couple from 21 December 2020.
8 January 2021 – She applies for review of decision claiming to have been not a member of a couple from 23 May 2017.
14 January 2021 – Authorised Review Officer (ARO) sets aside the decision and determines that Applicant was a member of a couple from 23 May 2017.
8 February 2021 – She requests review of ARO decision by the Social Services and Child Support Division of this Tribunal (AAT1).
2 June 2021 – AAT1 determines that Ms Chedyak was not a member of a couple from 21 December 2020 and paid her arrears of DSP at single rate from this date.
18 June 2021 – Applicant began to receive Carer Allowance at single rate.
23 November 2021 – the Agency and Ms Chedyak entered into a consent agreement accepting that she had been separated from the Applicant as from 23 May 2017 and that her DSP payments were to be reassessed on that basis.
3 February 2022 – Applicant lodged appeal with AAT1 to review date of his eligibility for payment at single rate claiming that it should be backdated to 23 May 2017.
24 March 2022 – AAT1 determined that Applicant was not a member of a couple from 23 May 2017 but was not eligible for payment of arrears as application lodged outside the 13-week statutory period proscribed.
7 April 2022 – Applicant lodged appeal against AAT1 decision with this Tribunal.
31 October 2022 – Matter heard in this Tribunal and adjourned with request for Respondent to provide additional information to Tribunal.

Date(s) of hearing:	31 October 2022
Date final submissions received:	16 November 2022
Applicant:	In person
Solicitors for the Respondent:	Mr T Chang, Services Australia