Cuschieri and Secretary, Department of Families, Community Services and Indigenous Affairs

[2007] AATA 1999

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1999

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No 2007/1749

GENERAL ADMINISTRATIVE DIVISION        )

Re        JOHN CUSCHIERI

Applicant

AndSECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

TribunalDr T Baker

Date30 November 2007

PlaceSydney

DecisionThe decision under review is affirmed.

[SGD]

Dr T Baker
  Member

CATCHWORDS 

SOCIAL SECURITY – carer allowance – request to backdate allowance – claim to be lodged in writing before payment will be made – legislation makes no provision for discretion - decision under review is affirmed.

RELEVANT ACTS:

Social Security Act 1991 (Cth): s 954(1)

Social Security (Administration) Act 1999 (Cth): ss 11(a), 13(1), 13(2), 13(3), 13(3A), 16, Schedule 2

REASONS FOR DECISION

30 November 2007 Dr T Baker

SUMMARY

1.      Mr Cuschieri has a wife, Mary Cuschieri, who has Arnold Chiari malformation.  As a result of her medical condition, Mrs Cuschieri requires constant care and supervision.  Mr Cuschieri has been caring for his wife on a full-time basis since 1993.

2.      Mr Cuschieri has been receiving an aged pension since February 1999. In May 2006, he became aware that he could also apply for a Carer Allowance in respect of the care of his wife.

3.      Mr Cuschieri lodged a claim for Carer Allowance on 30 August 2006.   Carer allowance was granted from that date.

4.      Mr Cuschieri requested a review of the decision by Centrelink to grant carer allowance from 30 August 2006, on the basis that Carer Allowance should have been backdated to 1993, when he commenced full-time care of his wife.

ISSUES

5. Mr Cuschieri qualifies for Carer Allowance pursuant to section 954(1) of the Social Security Act 1991 (Cth) (“the Act”):

(1)  A person is qualified for carer allowance for a disabled adult (the care receiver ) if:

(a)  the care receiver is an Australian resident; and

(b)  the care receiver is a family member of the person or is a person approved in writing by the Secretary for the purposes of this paragraph; and

(c)  the care receiver has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 30, being a score calculated on the basis of a professional questionnaire score of at least 12; and

(d)  because of the disability from which the care receiver is suffering, the care receiver receives care and attention on a daily basis from the person, or the person together with another person, in a private home that is the residence of the person and the care receiver; and

(f)  the person is an Australian resident.

6. Section 11(a) of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”) provides that a person who wants to be granted a social security payment must make a claim for the payment.

7. Section 16 of the Administration Act requires that a claim for payment be lodged in writing.

8. Section 13(1) of the Administration Act provides that payment may be backdated to the date the claimant contacted the Department, as long as the claimant qualified for payment on the day the Department was contacted; and the Department acknowledges the claimant’s contact in writing; and the claimant lodges a claim within 14 days after the Department is contacted.

9. Mr Cuschieri first contacted the Department in respect of Carer Allowance on 31 May 2006, but did not lodge his claim for Carer Allowance until 30 August 2006, more than 14 days after he first contacted the Department. Accordingly, Mr Cuschieri does not meet the criteria in section 13(1) for backdating and Carer Allowance was payable from 30 August 2006, the date Mr Cuschieri lodged his claim.

10. Where the claimant lodges a claim for payment more than 14 days, but not more than 13 weeks, after the Department is contacted, the Administration Act provides for an extension of time for lodgement in the following circumstances:

§the claimant could not lodge an earlier claim due to a medical condition (section 13(2));

§the person being cared for suffered from a medical condition which had a significant adverse effect on the claimant’s ability to lodge the claim earlier (section 13(3); or

§it was not reasonably practicable for the claimant to lodge the claim earlier, taking into account the special circumstances of the case (section 13(3A)).

In such circumstances, the claimant is taken to have made a claim for payment on the day on which the Department was contacted.

11.     Mr Cuschieri acknowledged that none of the above circumstances applied to the delay in lodging his claim for payment.  Accordingly, he does not meet the criteria in section 13 for backdated of his Carer Allowance.

12. Clause 17, Schedule 2 of the Act provides:

Carer allowance for disabled adult

(1)  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 12 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 12 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 12 weeks ending immediately before the day on which the claim was made.

13. There was no evidence before the Tribunal that Mrs Cuschieri’s disability arose within the 12 weeks prior to Mr Cuschieri lodging his claim, and that the disability was due to an acute onset. Mr Cuschieri gave evidence that he has been caring full-time for his wife since 1993, and her condition has steadily deteriorated since that time. He does not, therefore, meet the criteria in Clause 17, Schedule 2 of the Act for backdating of his Carer Allowance.

14.     The Tribunal acknowledges the important role Mr Cuschieri has played in the full-time care of his disabled wife over many years.  It is clear that Mr Cuschieri would have qualified for Carer Allowance from the date it was introduced in 1999.  Unfortunately, the legislation requires that a claim be lodged in order to qualify for payment, and this has meant that Mr Cuschieri has lost considerable entitlements that he would otherwise have received.  Unfortunately, there is no provision or discretion in the legislation that allows the payment of arrears to be granted in Mr Cuschieri’s circumstances.  The Tribunal is bound by the legislation and must apply it.

DECISION

15.     The decision under review is affirmed.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Dr T Baker, Member

Signed:   ........[sgd]....................................................................
               R.Wallace, Associate

Date of Hearing:  21 September 2007
Date of Decision:  30 November 2007

Solicitor for the Respondent:             George Lozynsky, Centrelink Legal                 Services