Clifton and Department of Family and Community Services - [2001] AATA 556

DECISION AND REASONS FOR DECISION [2001] AATA 556

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1088 &

GENERAL ADMINISTRATIVE DIVISION ) & N2001/33

Re      GLORIA CLIFTON
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
  Respondent
DECISION

Tribunal DR J D CAMPBELL

Date20 June 2001
PlaceSydney

Decision The Tribunal determines that both decisions under review be affirmed.

[Sgd] DR J D CAMPBELL
MEMBER
CATCHWORDS
Social Security - disability support pension - payment as not as a member of a couple - carer allowance - bereavement payment.

Freedom of Information - request for specific documents in a specific year - unable to identify such documents - meeting in a different year - detail documents not able to be supplied

Social Security Act 1991, - ss 146F and 146Q

Freedom of Information Act 1982 – ss 18, 24, 24A

REASONS FOR DECISION

DR J D CAMPBELL

In the two applications before the Tribunal, Mrs Gloria Clifton ("the Applicant") seeks a review of two decisions, namely:
(a)in matter N2000/1088, the decision by the Freedom of Information, Officer at Centrelink ("the Respondent") dated 7 June 2000, which refused the Applicant's request for access to information relating to an interview that was conducted in 1995 on the grounds that there were no references or notes regarding any meeting or interviews contained on either the Applicant's computer record or her record for 1995. This decision was reviewed and affirmed in a decision dated 26 June 2000 by a Section Manager, Centrelink.
(b)in matter N2001/33, the decision of the Social Security Appeals Tribunal ("SSAT"), dated 30 November 2000, which affirmed the decision of a Customer Service Manager at Centrelink dated 3 April 2000 that the Applicant was not entitled to a bereavement payment following the death of Mr Clifton, despite the fact she was receiving a carer allowance payment up to the time of his death. This decision had been reviewed and affirmed in a decision made by the authorised review officer ("ARO"), dated 24 July 2000.
A hearing was held before the Tribunal at Orange on 15 May 2001, at which the self represented Applicant presented oral evidence. The Respondent was represented by Ms Schuster, an advocate from the Advocacy and Administrative Law Team at Centrelink. Mr Perkins presented oral evidence.
The following material was placed into evidence before the Tribunal:
Exhibit No.   Description Date
T1-T43 PP1 – 119 Documents prepared pursuant to section 37 of the Administrative Appeals TribunalAct 1975 in relation to matter N2001/33, bereavement benefit
T1-T9 PP1 – 18 Documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 in relation to matter N2000/1088, FOI request
Exhibit A1     Medical Report Dr Ridge 25 July 2000
Exhibit R1     Letter from Centrelink Orange to Ms O'Neil (Respondent)     3 April 2001
Exhibit R2     Respondent's Statement of Facts and Contentions     26 February 2001
Exhibit R3     Statement by Ms Gael Martin       20 February 2000
Exhibit R4     Australian Archives Records Disposal Authority No 706
Exhibit R5     Australian Archives Records Disposal Authority No 1335

issues

The relevant issues in these matters are:
(a)whether the Applicant can be given access to documents requested by her, but which cannot be located by Centrelink; and
(b)whether the Applicant is able to receive a bereavement payment in respect of the death of Mr John Clifton, pursuant to the Social Security Act 1991.

legislation

The relevant legislation is these matters is:
(a)the Social Security Act 1991 ("The Act"), and in particular Sections 146F and 146Q; and
(b)the Freedom of Information Act 1982 ("the FO1 Act") and in particular sections 12, 24 and 24A.

background

The Applicant and Mr Clifton married in 1970, separated in 1976 and lived separately for the next 18 years. The Applicant was granted Disability Support Pension ("DSP") in 1989. A review of the Applicant's DSP was undertaken in May 1994 and her entitlement confirmed (T4). In June 1994 the Applicant lodged a living arrangement notification with the Respondent indicating that she and her ex husband were living at 158 Edward St, Orange and that this arrangement was entered into in order that she care for her ailing ex-husband (T5). A further notification was lodged with the Respondent on 11 July 1994, indicating that the Applicant and her ex husband were moving to 2/97 Hill Street, Orange (near the hospital) on 13 July 1994 (T6/T7.
On 21 July 1994 the Applicant lodged an assessment of living arrangements form with the Respondent (T8). Mr Clifton was granted DSP in July 1994 and on 1 August 1994 the Respondent concluded that the Applicant and Mr Clifton were not living in a marriage-like relationship and that payment of DSP to each would be at the single rate, with a review of circumstances to occur within a year (T10).
On 5 January 1996 the Respondent wrote to the Applicant indicating that a Ms Walker and Mr Perkins would be visiting on 17 January 1996 to review her payment (T11). Documents dated 15 January 1996 indicate that the review occurred on 12 January 1996 and that there were nil changes to financial or domestic circumstances (T12). On 9 July 1999 the Respondent advised the Applicant that she would be paid carer allowance from Centrelink in lieu of domiciliary nursing care benefit from the Department of Health and Aged Care from 1 July 1999. The payment of carer allowance to the Applicant continued until she advised Centrelink of Mr Clifton's death on 29 March 2000, with carer allowance payment ceasing from 31 March 2000 (T21).
On 3 April 2000 the Applicant rang Centrelink to complain about the estate only receiving one pension payment after death. The Applicant was advised that bereavement payment is only payable to the surviving member of a couple, or where the carer is receiving carer payment, and that as she had been assessed as not being a member of a couple and was receiving carer allowance, not carer payment, she did not qualify for bereavement payment (T23).
On 4 April 2000 the Applicant complained to the Respondent, stating that an officer came to her home in 1995 and she asked the officer about being transferred to carer payment. The officer is said to have called back later and is reported as stating that the Applicant should stay on DSP, as in the event of death, the remaining person would be entitled to the mortuary payment. The Applicant was advised that there was no record of such information being given, and that it would appear that such a response assumed they were a married couple (T25). The Applicant was advised of her lack of entitlement to bereavement payment, by the Respondent, on 19 April 2000 (T27). This decision was reviewed and affirmed by the ARO on 24 July 2000 (T40) and the SSAT on 30 November 2000 (T2).
On 17 May 2000 the Applicant lodged a request for access to notes, records or documents relating to an interview in 1995 (T31). On 7 June 2000 the ARO used to grant the Applicant access to such records under section 24 of the F01 Act (T36). The decision, following review, was affirmed on 26 June 2000 (T2).

applicant's evidence

The Applicant informed the Tribunal of the general circumstances involving her care for the late Mr Clifton. Further she indicated that both her and Mr Clifton were on DSP prior to the time relevant to the issues in this matter.
The Applicant indicated that she and Mr Clifton were visited by a tall blonde woman and Mr Perkins on 17 January 1996. Mr Perkins spoke with Mr Clifton and the tall blonde lady spoke to the Applicant. As part of the interview with the lady, the Applicant stated that she requested to go onto a carer's pension. The Applicant stated that the tall blonde woman rang back and stated that she should remain on the DSP, for payment from the mortuary fund would be paid to the surviving person.
The Applicant stated that she was particular in ensuring that she notified the Respondent of Mr Clifton's death, to ensure there was a timely cessation of carer allowance payments. The Applicant also stated that she approached Ms Yates at the Centrelink Office not long after Mr Clifton's death, and that the file nominates her request for particular documents and records on 17 May 2000. The response was that non existed, however on 2 November 2000 particular computer records were forwarded to her by the Respondent.
evidence of mr perkins
In both his statement of 22 January 2001 and in oral evidence to the Tribunal, Mr Perkins, a customer service officer at Centrelink, Orange, stated that he had no recollection of visiting the Applicant and Mr Clifton in January 1996. Mr Perkins stated that he had accessed the records that indicate that he did undertake such a visit, and does not deny that such did occur.
In January 1996 Mr Perkins stated that he was a junior officer in the Department, having been there only two years, but he does remember that there was a person fitting the description of a tall blonde woman with whom he made some visits, as his degree of experience at that time did not permit solo activity. Mr Perkins stated that the woman in question no longer works for the Respondent.
Mr Perkins stated that it is operational practice, when a review package is completed at a field visit, that it is kept for two years in batch storage according to file management guidelines. He stated that as a consequence of such practices, he was unable to locate such a package with Centrelink, Orange.
submissions
The Applicant contends that in essence, an interview process was undertaken at her place of residence on 17 January 1996, and that she specifically requested of the interviewing officer that consideration be given to transfer from DSP to carer payment. The Applicant contends that, in response, she was advised to stay on DSP and that the surviving individual would receive a payment from the mortuary fund.
The Applicant further contends that her request for access to particular information dated 17 May 2000, has been wrongly denied, in that computer records nominating particular information on a home visit on 12 January 1996 were forwarded, when she had been previously been advised that none existed.
The Respondent contends that the Applicant was not, and is not, entitled to a bereavement payment, as she was not a member of a couple or receiving carer payment at the time Mr Clifton died. In making such a contention, the Respondent did not contest the Applicant's version of events in relation to the home visit of January 1996, but remained at a loss to either understand, or place in context, the issue of a "mortuary fund" in relation to social security payments.
In relation to access to information, the Respondent contends that documentation particular to the home visit in January 1996 would have been destroyed in accordance with the appropriate authorisation and that as indicated by Mr Perkins no such record exists in the Centrelink Orange Office.
consideration and findings
In addressing the two issues raised by the Applicant, the Tribunal has been careful to chronicle the documented interactions between the two parties as nominated in the two sets of Tribunal documents and particular exhibits before the Tribunal. As a consequence, the Tribunal has no difficulty in concluding that officers of the Respondent conducted a home visit to the residence of the Applicant and Mr Clifton, as nominated by the Applicant. Further, it is evident to the Tribunal that such a visit by the Respondent was for the purpose of reassessing the circumstances and pension entitlement of the Applicant and Mr Clifton. This was as a consequence of the nominated review requirements in the decision of 1 August 1994, whereby both the Applicant and Mr Clifton were to be paid DSP at the single rate, in light of the decision that they were not members of a couple.
Further, in considering all the evidence before it, the Tribunal makes the following findings of fact.
(a)      the Applicant was in receipt of DSP from the late 1980's;
(b)      that Mr Clifton was in receipt of DSP from July 1994;
(c)       that the Applicant and Mr Clifton lived under the one roof from July 1994, with the Applicant caring for a medically disabled Mr Clifton;
(d)      that the Applicant and Mr Clifton were not considered to be members of a couple, or living in a marriage-like relationship, by the Respondent;
(e)      that both the Applicant and Mr Clifton were paid DSP at the single rate; and
(f)       that the Applicant received a carer's allowance from 2 July 1999 in relation to the care for Mr Clifton, which ceased on 31 March 2000, some two days after Mr Clifton's death.
statutory framework
The issues in these matters is to be considered within the following statutory framework:
           "Qualification for payments under this Subdivision
146F(1) If:
(a)       a person is receiving Disability Support Pension; and
          (b)       the person is a member of a couple; and
          (c)       the person's partner dies; and
          (d)       immediately before the partner died, the partner:
(i)        was receiving a social security pension; or
(ii)       was receiving a service pension; or
(iii)      was a long term social security recipient; and
(e)       on the person's payday immediately before the first available bereavement adjustment payday, the amount that would be payable to the person if the person were not qualified for payments under this Subdivision is less than the sum of:
(i)the amount that would otherwise be payable to the person under section 146J (person's continued rate) on that payday; and
(ii)the amount that would otherwise be payable to the person under section 146G (continued payment of partner's pension or benefit) on the partner's payday immediately before the first available bereavement adjustment payday;
the person is qualified for payments under this Subdivision to cover the bereavement period.
Death of recipient
146Q(1) If:
(a)       a person is receiving disability support pension; and
(b)       either:
(i)        the person is not a member of a couple; or
(ii)       the person is a member of a couple and the person's partner:
          A.        is not receiving a social security pension; and
          B.        is not receiving a service pension; and
(c)       the person dies;
there is payable, to such person as the Secretary thinks appropriate, an amount equal to the amount that would have been payable to the person under this Act on the person's payday after the person's death if the person had not died."

consideration and findings

In considering the facts detailed earlier by the Tribunal in this matter, within the statutory framework outlined, it is evident that the Applicant fails to satisfy s146F(1) of the Act, in that the Applicant was not a member of a couple and had been receiving payment of DSP at the single rate since 1989 and continuing at the time of Mr Clifton's death. Accordingly, it is the Tribunal's finding that the Applicant, in not satisfying s146(1), fails to qualify for bereavement payment under this section of the Act.
In considering the death of Mr Clifton, the Tribunal concludes that a single fortnightly payment was correctly paid to the estate of Mr Clifton, pursuant to s146(1) of the Act, as Mr Clifton was not a member of a couple.
In addressing the issue of the Applicant's carer allowance, the Tribunal observes that under Social Security law there is no provision to pay a bereavement payment in respect of carer allowance for an adult.
The Tribunal concludes, that the Applicant has no entitlement under the Act to a bereavement payment relating to the death of Mr Clifton. Any consideration of such an entitlement must centre around the issue of the advice rendered to the Applicant at the visit and thereafter in January 1996. The Tribunal does note that a request for consideration for compensation by the Applicant has been denied by the Respondent with the Applicant's only remaining avenue for review as regard the compensation issue resting with the Ombudsman.
In turning to the issue of access to information regarding the home visit and advice rendered as a result thereof in January 1996, the Tribunal notes the following:

that the Applicant's request originally related to 1995, but following discussions between the parties the request was agreed as relating to documentation and records relating to the home visit review and advice rendered in January 1996;
that the Respondent states that the only documents relating to that visit are included at T11 and T12 in the Tribunal documents;
that a Centrelink compliance Manager indicated that searches were conducted of the file and batch storage areas but no documents containing notes of an interview in 1996 were found;
that the relevant review package was most probably batch stored;
that pursuant to Australian Archives Records Disposal Authorities (RDA No. 706 – disposal of batch storage after 18 months; RDA No 1335 from 6 January 1998 disposal of latch stored documents two years after the date on which the batch was created), with the review form relating to the home visit being more than likely batch stored on completion or within some months thereafter, there is every possibility that the requested documents were destroyed prior to May 2000; and
that Mr Perkins has been unable to locate any further material relating to the request in the Centrelink Orange Office.

The Tribunal notes the statutory framework under which such applications for access are to be considered. Section 18 of the FOI Act states that where a valid request is made, access must be granted in accordance with the FOI Act unless the document is exempted.
The Tribunal further notes that requests may be refused in certain cases:
(a)pursuant to section 24 of the FOI Act - would substantially and unreasonably direct the resources of the agency from its operations;
(b)      pursuant to section 24A of the FOI Act which states:
"An agency or Minister may refuse a request for access to a document                if:
(a)       all reasonable steps have been taken to find the document;
(b)       the agency or Minister is satisfied that the document:
(i)is in the agency's or Minister's possession but cannot be found; or
(ii)does not exist."
In considering the circumstances outlined by both parties in relation to the request for access, and to the action and activities undertaken by Respondent to comply with the request, the Tribunal is satisfied that all reasonable steps have been taken by the Respondent to find the particular document and that in all probability it does not exist or if it does exist it cannot be found. Accordingly, the Tribunal concludes that the document for which access was requested is an exempt document, pursuant to section 24A of the FOI Act, and that access is denied.
determinations
The Tribunal determines that both decisions under review be affirmed.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of DR J D CAMPBELL
Signed: R.Quinn     .....................................................................................
  Associate
Date/s of Hearing  15 May 2001
Date of Decision  20 June 2001
Counsel for the Applicant         Self Represented
Solicitor for the Respondent    H Schuster