D'Silva and Department of Family and Community Services

[2002] AATA 286

DECISION AND REASONS FOR DECISION [2002] AATA 286

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          Q2001/1098

GENERAL ADMINISTRATIVE DIVISION         )          
           Re      NINFA D'SILVA      
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        

Respondent

DECISION

Tribunal       Ms J Cowdroy, Member    

Date24 April 2002

PlaceBrisbane

Decision      The decision of the Social Security Appeals Tribunal dated 19 November 2001 is affirmed.                

………………………
  J Cowdroy
  Member

CATCHWORDS
SOCIAL SECURITY – carers pension – start date – whether Tribunal has a discretion to back-date commencement of payments – whether provision of incorrect advice affects start date

Social Security (Administration) Act 1999

REASONS FOR DECISION

24 April 2002           Ms J Cowdroy  

1. This matter concerns an application for review of a decision of the Social Security Appeals Tribunal ("the SSAT"), made on 19 November 2001, which affirmed a decision of Centrelink that carer allowance was payable from 14 February 2001, and no earlier.  The applicant lodged an application for review of that decision on 30 November 2001.

HEARING

1. The matter was determined on the basis of the written material before the Tribunal, with the consent of both parties.    The Tribunal had regard to the Section 37 Documents ("the T" documents) which comprise T1-T41.

BACKGROUND TO THE APPLICATION

1. It is not in dispute that the applicant claimed carer allowance on 15 August 2001 in respect of her husband, Mr B D'Silva.  Mr D'Silva suffered a subdural haemorrhage, in respect of which he was hospitalised at Princess Alexandra Hospital.  He underwent surgery on 25 February 2000 for that condition and was discharged on 7 March 2000.   Mrs D'Silva has continued to care for her husband since that time.

2. She claimed carer allowance on 15 August 2001 and commenced to be paid that allowance from 14 February 2001, which represents a period of 26 weeks ending immediately before the day on which her claim was made. 

APPLICANT'S CASE

1. There are a number of letters from the applicant and Mr D'Silva expressing their concern at Centrelink's refusal to pay carer allowance from the day following Mr D'Silva's discharge from hospital.  Mrs D'Silva had stated that she was not aware that she was eligible to receive carer allowance, based on information she was given by a social worker at Princess Alexandra Hospital.  She was told that she did not qualify on the basis that she was in receipt of age pension.

2. Subsequently, Mrs D'Silva became aware that she may be eligible, and lodged a claim for carer allowance.   She commenced to be paid carer allowance and she became aware that the receipt of age pension did not necessarily preclude her from receiving carer allowance.  Consequently, had she lodged a claim when her husband was discharged from hospital, she would have been eligible to receive carer allowance from that time.

3. The applicant maintained that there "was a legal obligation for the Social Services Representative not to be careless, negligent, or irresponsible in advising me that as an old age pensioner I was not eligible" (T41-71).  In her application for review of the decision, the applicant stated: "It is clear that Centrelink has not refuted that the lady from Social Security at PA Hospital had no authority to mislead me.  Impliedly Centrelink is liable to pay me from 8-3-00 on findings of SSAT.  If so common law, equity and natural justice should apply for payment from 8-3-00" (T1-2).

4. At folio T19-40, Mrs D'Silva made application to Centrelink for back payment of carer allowance.  She stated: "Unless there is a legal obstacle, I think I qualify for back payment … Please advise me of any lawful impediment preventing remittance from 7-3-00".

5. Mr D'Silva, the applicant's husband, who is a solicitor and former Chief Magistrate in Uganda, asked that the Tribunal have regard to the definition of 'duty' from Brewers' Dictionary of Phrase and Fable in reaching its conclusion.

RESPONDENT'S CASE

10. The respondent's case is set out in the decision of the Authorised Review Officer dated 23 October 2001.  Essentially the respondent contended that the date of commencement of payment of a social security payment generally commences on the person's "start date".  The general rule in relation to a person's "start date" is that it is the date on which the claim is made.

11. However, there are some circumstances in which the general rule does not apply.  One such circumstance is where a person becomes qualified for carer allowance on the basis of being a carer of a disabled adult where the disability affecting the adult is due to an acute onset.  In that situation, carer allowance can be backdated 26 weeks before the day on which the claim was made.  The respondent contended that there is no discretion within the legislation to allow payment from an earlier date than 14 February 2001.

12. The decision of the SSAT, although expressed in more detail, essentially agrees with the respondent's contentions.

THE LEGISLATION AND ITS APPLICATION

13. The facts in this matter are not in dispute.   The sole issue for the Tribunal is whether it has discretion to make a determination that carer payment can be paid prior to 14 February 2001.  It is not in dispute that had Mrs D'Silva applied for payment of carer allowance following her husband's discharge from hospital, she would have most likely qualified for carer allowance at that time.  

14. However, applying the legislation regulating the commencement date for payment of carer allowance, which is contained in Section 41 of the Social Security (Administration) Act 1999 and Schedule 2 of that Act, it is clear that the earliest date which the applicant can be paid carer allowance is 26 weeks prior to the day on which her claim was made, namely 14 February 2001.

15. In support of the contention that the date of commencement of payment should be further back-dated to permit payment before 14 February 2001, it has been pointed out that the applicant relied on advice from a social worker at the Princess Alexandra Hospital, who, it was said, was acting as an agent of the Social Security Department.  That incorrect advice was given is a most unfortunate state of affairs.  However, there is nothing in the Social Security legislation, either relating specifically to the payment of carer allowance or any general provision which would permit the Tribunal to depart from the rules contained in Schedule 2.  In other words, it has no discretion in the matter.

16. The Tribunal affirmed the decision under review.  

I certify that the sixteen (16) preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member

Signed:         ..................................................................................
  Associate

Matter heard on the Papers    
Date of Decision  24 April 2002

The Applicant represented herself          
Solicitor for the Respondent    Mr Z McEwan