Chu and Secretary, Department of Family and Community Services

[2005] AATA 679

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 679

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2005/121

GENERAL ADMINISTRATIVE DIVISION		)
Re		MAC A CHU

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr John Handley, Senior Member
Dr P Fricker, Member

Date18 July 2005

PlaceMelbourne

Decision The decision under review is affirmed.

(Sgd)  John Handley

Senior Member

SOCIAL SECURITY – carer payment (CP) and carer allowance (CA) – one-off payments – eligibility – whether entitlement to CP and CA can be backdated – whether payments can be deemed to be income support payments – decision affirmed

Social Security Act 1991 (Cth) s 247 and s 992N

Social Security (Administration) Act 1999 (Cth) s 12 and s 13 (1), Schedule 2 Cl 17

Re Scutter and Secretary, Department of Family and Community Services

[2005] AATA 604

REASONS FOR DECISION

18 July 2005

Mr John Handley, Senior Member

Dr P Fricker, Member

1.      This matter came on for Hearing to review a decision of the Social Security Appeal Tribunal (“SSAT”) of 27 January 2005, which affirmed a decision of a delegate of Centrelink of 11 November 2004, to refuse payment to Mrs Chu of the one-off payment of carer payment (“CP”) of $1000 and the one-off payment of carer allowance (“CA”) of $600.

2.      Mrs Chu was not present at the hearing which was listed on 12 May 2005.  Mr Meehan appeared on behalf of the respondent.  After numerous attempts were made to contact Mrs Chu by telephone via an interpreter that had been organised for the hearing, we decided to make a decision on the papers.  Mrs Chu was subsequently invited to lodge written submissions in response to those lodged by the respondent, however none were received.

3.      Mrs Chu’s application for review was lodged on 16 February 2005.  The reason stated for this review was:

Unfair to penalise us due to language difficulties.

4.      Mrs Chu and her husband are of Vietnamese origin and stated in their application to the Tribunal that they required the assistance of a Cantonese interpreter.  Mrs Chu’s evidence to the SSAT was that she and her husband were unaware of their entitlements until a friend told them.

background

5.      Mrs Chu’s husband made contact with Centrelink on 29 September 2004, regarding a claim for CP and CA.  Mrs Chu lodged a claim for CP and/or CA on 5 October 2004.  On 5 October 2004, a decision was made by Centrelink to grant both CP and CA to Mrs Chu from 29 September 2004, this being the date of the initial contact between her husband and Centrelink.

6.      On 9 November 2004, Mrs Chu lodged a query as to why she had not been paid the one-off payment to carers (CA related and CP related).  The decision not to pay either of the one-off payment to carers was affirmed on 11 November 2004 by an Authorised Review Officer (“ARO”).

7.      A review of the ARO’s decision was requested by Mrs Chu on 19 November 2004 and on 27 January 2005 the SSAT affirmed the decision of the ARO not to pay either of the one-off payment to carers. 

issues for consideration

8.      The respondent submitted that there were three issues to be decided in this review;

·     Was there an entitlement to the one-off payment to carers (carer allowance related of $600.00 to applicant)?

·     Was there an entitlement to the one-off payment to carers (carer payment related of $1000.00)?

·      Can Mrs Chu’s claim for CP and CA be treated as being made earlier than the date it was lodged (5 October 2004).

legislation

9.      The relevant legislative provisions are contained within the Social Security Act 1991 (“the Act”) and the Social Security (Administration) Act 1999 (“the Administration Act”).

10. In relation to the date at which a claim is deemed to have been lodged, s 13(1) of the Administration Act 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.

11. Backdating of the claim for CA is allowed under the circumstances set out in Schedule 2 clause 17(2) of the Administration Act as follows:

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.

12. The qualification for the one-off payment in relation to the CP is outlined in s 247 of the Act:

A person (the qualified person ) is qualified for a one-off payment to carers (carer payment related) if the person has been paid an instalment of carer payment in respect of a period that includes 11 May 2004.

13. The qualification for the one-off payment in relation to the CA is outlined in s 992N(1) and (2) of the Act:

992N(1) A person (the qualified person ) is qualified for a one-off payment to carers (carer allowance related) if the following conditions are satisfied in relation to one or more instalments of carer allowance that have been paid to the person:

(a)the instalment was in respect of a period that included 11 May 2004;

(b)the reason why the instalment covered 11 May 2004 was not only because of clause 16 or 17 of Schedule 2 to the Social Security (Administration) Act 1999 .

992N(2) For the purposes of this Part, the instalment, or each instalment, in relation to which paragraphs (1)(a) and (b) are satisfied is a qualifying instalment .

conclusions and reasons for decision

14. The backdating of Mrs Chu’s claim from 5 October 2004 to 29 September 2004 was made possible by section 13 of the Administration Act which provides that the date of contact regarding an intention to claim, (such as that made by Mrs Chu’s husband) is to be treated as the date of claim for payment provided that certain requirements are met, as they were in this case. The earliest date therefore that Mrs Chu could be regarded as eligible to claim CP and CA is 29 September 2004.

15. There are provisions in the legislation which allow for further backdating of a claim, however this case does not satisfy those provisions. Clause 17 of Schedule 2 permits backdating of payments of CA only to a maximum of 26 weeks before the date of claim if the disability is due to an acute onset. There is no evidence in any of the material before the Tribunal which points to the illnesses of Mr Chu – either alone or in combination – causing a disability by “acute onset”.  Mrs Chu’s husband had received disability support pension since 1 October 1998 and in April 2003, he lodged a medical review form stating that his disabilities made it difficult for him to care for himself.  Additionally, the combined effect of Clause 17 and s 992N prohibit entitlement to CA earlier than 29 September 2004.  On the one hand, Clause 17 deems qualification up to 26 weeks prior to the date of claim if there was an “acute onset”.  The s 992N reference to 11 May 2004 being a date within 26 weeks of 29 September cannot further Mrs Chu’s claim because both sub-sections (a) and (b) must be satisfied.  Sub-section (b) cannot be satisfied because qualification under Clause 17 in the absence of evidence of “acute onset” would have been the only basis for entitlement, whereas s 992N applies only if entitlement occurred “not only because” of Clause 17.  A similar decision was reached in a recent decision of the AAT in the matter of Re Scutter and Secretary, Department of Family and Community Services [2005] AATA 604.

16. Additionally, there is no entitlement to CP, because s 247 permits entitlement only if payment was being received in respect of a period that included 11 May 2004. CP was not then paid and there is no other provision to backdate that benefit.

17. In a further statement of facts and contentions lodged by the respondent after the scheduled date of hearing, the respondent raised a supplementary issue of whether section 12 of the Administration Act can be applied so that Mrs Chu’s claim for CP be treated as being made earlier that the date of lodgement (5 October 2004). Section 12 authorises the Department to transfer a person from one form of income support payment to another to which they have become qualified.

18. The relevant part of section 12 is reproduced as follows:

Certain transfers between payments

(1) Subject to subsection (3), if:

(a)a person is receiving an income support payment; and

(b)while receiving the payment, the person becomes qualified for another income support payment (the other payment ); and

(c)the Secretary determines that the person is to be transferred to the other payment;

the person is taken, for the purposes of the social security law, to have made a claim for the other payment on the day on which the person became qualified for the other payment.

19.     Mrs Chu had been in receipt of Partner Allowance (“PTA”) from 14 September 1994 and the issue is whether she qualified for CP any earlier than 29 September 2004.  The section only applies to “income support payments” which is defined in section 23 of the Act and does not include CA but does include PTA and CP.

20. The respondent contends that it cannot be shown on the balance of probabilities that Mrs Chu qualified for CP prior to lodging her claim for CP on 5 October 2004 (29 September 2004) due to the fact that it was not until 29 September 2004 that her husband was assessed as attracting a rating of 56.50 points under the Adult Disability Assessment Tool (ADAT) with a total professional score of 25.00 points. These scores satisfied the minimums set out in section 198 of the Act.

21. In the circumstances there does not appear to be any provision in section 12 that would enable Mrs Chu to qualify for CP earlier than 29 September 2004 when her husband was assessed. This date cannot be ‘backdated’ to when Mrs Chu first received PTA in 1994 as this predates the section coming into operation on 20 March 2000 by Act No 191/1999, being the Administration Act. The section does not have a retrospective operation and cannot be used to transfer a person to an entitlement prior to the section coming into effect.

22.     The Tribunal acknowledges the frustration Mrs Chu may feel due to missing out on the bonus one-off payments that may have been available to her if she had made claims for CA and/or CP earlier in time.  Furthermore, her frustrations may be compounded by the lack of language skills and comprehension of the processes involved in the social security system in this country.  It is true that if the entitlement had been brought to her attention earlier than when Mrs Chu was informed by friends that she may be eligible and she had lodged a claim, she may indeed have qualified for the one-off carer payment.  However, Centrelink has no legal duty to ensure that all current and potential recipients of benefits are informed that they might qualify for a particular payment.

23.     There is no discretion that exists in the legislation for this Tribunal to allow Mrs Chu the one-off payments of CA and CP.  In these circumstances the decision must be affirmed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member and
Dr P Fricker, Member

Signed:         Alice Beattie
  Associate

Date of Hearing  12 May 2005
Date of Decision  18 July 2005
Solicitor for the Applicant          Nil
Departmental Advocate            Mr S Meehan