Cupac and Secretary, Department of Social Services (Social services second review)

[2017] AATA 1248

Cupac and Secretary, Department of Social Services (Social services second review) [2017] AATA 1248 (31 July 2017)

Division:GENERAL DIVISION

File Number(s):      2017/2642

Re:Susana Cupac

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:31 July 2017

Date of written reasons:        11 August 2017

Place:Sydney

The decision under review is affirmed.

...............[sgd].........................................................

Mrs J C Kelly, Senior Member

CATCHWORDS

SOCIAL SECURITY – carer payment – start day – application for payment made more than 13 weeks after initial contact with Centrelink –  whether claim can be deemed to have been made earlier than the date on which the claim was lodged – statutory criteria for deemed claim not satisfied – decision affirmed

LEGISLATION

Social Security (Administration) Act 1999 (Cth) ss 11, 13, 16(1), sch 2

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

11 August 2017

1. The applicant contacted Centrelink on 15 August 2016 but did not lodge an application for carer payment until 11 January 2017.

2. A summary of the relevant legislative framework is attached at Schedule 1.

3. The Tribunal discussed with Ms Cupac the relevant law and her circumstances from around 15 August 2016 until 11 January 2017 and explained to her that her circumstances did not satisfy the legal criteria. She was dissatisfied with that explanation.

4. The Tribunal finds that the applicant’s circumstances do not fall within ss 13(1), 13(2), 13(3) or 13(3A) of the Social Security (Administration) Act 1999 (Cth) or any other relevant provision that allows the Tribunal to take into account the particular circumstances of her mental and physical incapacity at the time she contacted Centrelink on 15 August 2016, or the alleged difficulties with the postal office.

5. For those reasons, the Tribunal affirms the decision under review, that is, the decision of the Administrative Appeals Tribunal Social Services and Child Support Division made on 26 April 2017, which affirmed a decision of the Department of Human Services to grant the applicant carer payment from 11 January 2017, and not an earlier date.

I certify that the preceding 5 (five) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member.

...............[sgd].........................................................

Associate

Dated: 11 August 2017

Date of hearing:	31 July 2017
Applicant:	By phone
Solicitors for the Respondent:	Ms G Doyle, Department of Human Services

SCHEDULE 1 – LEGISLATIVE FRAMEWORK

1. The relevant legislation is contained in the Social Security (Administration) Act 1999 (Cth) (Administration Act).

2. In order to be granted a social security payment, a person must make a claim for that payment (s 11 of the Administration Act). Section 16(1) relevantly provides that a person makes a claim for a social security payment by lodging a written claim for the payment.

3. Schedule 2 to the Administration Act sets out the rules for working out the start day in relation to benefits and pensions.

4. Generally speaking, the start day in relation to a payment is the day on which the claim is made and they are qualified for the payment on that day (cl 3 to schedule 2 of the Administration Act).

5. The only other mechanism by which the applicant’s payment could commence from an earlier date is the deemed claim provision set out in s 13 of the Administration Act. There are four circumstances in which a person can be deemed to have made a claim for a social security payment at a date earlier than the date on which the claim was actually lodged.

6. In each case, the following factors must be met:

   (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

7. In addition to the above, the four circumstances in which the deeming provisions apply are as follows:

   Claim made within 14 days: s 13(1)

   (d)the person lodges a claim for the social security payment within 14 days after the Department is contacted.

   Claim made within 13 weeks and the person was suffering from a relevant medical condition: s 13(2)

   (d)the claimant lodges a claim for the payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and

   (e)the Secretary is satisfied that:

   (i)throughout the period starting on the day on which the Department was contacted and ending on the day on which the person lodged the claim, the person was suffering from a medical condition; and

   (ii)that medical condition, or circumstances related to that medical condition, had a significant adverse effect on the person’s ability to lodge the claim earlier.

   Claim made within 13 weeks and the person was caring for a person with a relevant medical condition: s 13(3)

   (d)the claimant lodges a claim for the payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and

   (e)the Secretary is satisfied that:

   (i)throughout the period starting on the day on which the Department was contacted and ending on the day on which the claimant lodged the claim, the claimant was caring for, or was the partner of, another person; and

   (ii)throughout that period, the other person suffered from a medical condition; and

   (iii)the medical condition, or circumstances related to the medical condition, from which the other person was suffering had a significant adverse effect on the claimant’s ability to lodge the claim earlier.

   Claim made within 13 weeks and special circumstances: s 13(3A)

   (d)the claimant lodges a claim for the 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.

8. The criteria under each of ss 13(1), (2), (3) and (3A) are cumulative. That is, if just one of the criteria is not met, then the applicant cannot obtain the benefit of the provisions.