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

[2022] AATA 5278

Desfosses and Secretary, Department of Social Services (Social services second review) [2022] AATA 5278 (20 September 2022)

Division:GENERAL DIVISION

File Number(s):      2021/2023

Re:Katheline Desfosses

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:20 September 2022    

Place:Sydney

In proceedings 2021/2023 the reviewable decision dated 25 February 2021 is varied to affirm a decision of an officer under the social security law on 29 June 1998, as affirmed by an authorised review officer on 8 December 2020, to pay carer payment from 28 May 1998.  

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....................[Sgd]...................................................

Mrs J C Kelly, Senior Member

CATCHWORDS

SOCIAL SECURITY – carer payment –whether the Applicant applied for carer payment 11 years before an application was made and granted – decision affirmed; whether Applicant did not receive CP payments during the period 28 May 1998 and 24 May 2011 - not accepted.

LEGISLATION

Social Security Act 1991, sections 200 to 205, as in force on 28 May 1998

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

1. Mrs Desfosses was granted carer payment (CP) from 28 May 1998.  She claims that she applied for CP in 1987 when she left work to care for her mother-in-law and should be paid from that time.  Her mother-in-law died on 15 February 2011.

   Background facts

2. In response to Mrs Desfosses’s claim for CP lodged on 4 June 1998 (T4, p 28), Centrelink (now Services Australia) sent her a notice dated 29 June 1998 informing her that CP had been granted with effect from 28 May 1998 (T5, p45).   That notice set out her responsibilities under social security legislation and her right to appeal if she considered that the decision was wrong.  

3. On 11 September 2020, Mrs Desfosses tried to lodge in the Social Security and Child Support Division of the Tribunal (AAT1) a request for review.  However, she had not sought an internal review by Services Australia and therefore, AAT1 did not have jurisdiction and the matter was remitted to Services Australia for internal review. (T11, p 215).

4. On 8 December 2020, an authorised review officer (ARO) affirmed the decision to grant Mrs Desfosses CP from 28 May 1998 and not from an earlier date (T10, pp 57-60). The ARO carefully considered Mrs Desfosses’s claim that she was not paid CP from 1987 to 2011, summarised the evidence and found that there was no evidence to support that claim.

5. Mrs Desfosses applied to AAT1 to review that decision.  On 25 February 2021, AAT1 affirmed the ARO’s decision to pay CP from 28 May 1998.  Mrs Desfosses applied for review by this Tribunal in an application dated 8 April 2021 and stamped ‘received’ on 22 April 2021.  She claimed that the decision was wrong ‘because she had not been paid yet’.

   Relevant legislation

6. The relevant legislative provisions in force in 1998 were sections 200 to 205 of the Social Security Act 1991.

   Principal claim

7. The difficulty in this matter is that there is no contemporaneous documentary evidence that Mrs Desfosses had made a claim for CP before 4 June 1998.  I accept that she now believes that she did, but that belief is not supported by evidence.

8. I held two telephone directions hearings with Mrs Desfosses and a representative of the Respondent, the Secretary, Department of Social Services, on 15 July 2022 and 5 August to discuss the fact that there was no evidence that Mrs Desfosses had applied for CP before 4 June 1998.

9. On 15 July 2022, I directed that:

   1. On or before Friday, 29 July 2022, the Applicant is to provide to the Tribunal a copy of the Carer Payment claim form lodged in 1987, and

   2. Listed the matter for a further telephone directions hearing on Friday, 5 August 2022 at 9:30am.

10. On 5 August 2022, I directed that on or before close of business on 9 September 2022, the Applicant shall file with the Tribunal and serve on the Respondent any application for carer payment made by the Applicant before 1998.

11. Mrs Desfosses provided no evidence in response to those directions.

12. There is no document or record of contact about her claiming CP before a claim form was lodged on 4 June 1998 in respect of her mother-in-law.  There is an application for parenting payment dated 19 June 1996 in which she records that she had claimed or was last paid Family Allowance on 24 June 1996 at the social Security office in Parramatta. 

13. Mrs Desfosses provided an Employment Separation Certificate, dated 12 October 2020 which she completed. The nominated employer was the Tax Department, and her employment was from 3 January 1978 to 10 July 1987. The reasons for separation were in summary, she had to care for her mother-in-law.  It was not signed by the employer.  I give that document no weight.

14. Mrs Desfosses sent two documents to the Tribunal by facsimile on 3 June 2021 and 28 October 2021.  The content of those documents does not provide evidence that Mrs Desfosses applied for CP before 28 May 1998. The document dated 3 June 2021 is about not receiving payments for child endowment and caring for her mother-in-law and apparently not receiving payments for work.  The document dated 28 October 2021 says that she is still waiting for her payments for her mother-in-law and sets out details of what she describes as abuse.

15. At the hearing, Mrs Desfosses gave different accounts of when and where she applied.  She said that she worked from 1987 to 1992 and looked after her mother-in law in the afternoon after work. She had her son in 1992 and then looked after her mother-in-law full-time until her death in 2011. Her evidence was confusing because she talked about working for Centrelink at Parramatta or Merrylands and not being paid in 1987 and 1992. 

16. She said that she made the claim at Merrylands in 1987 and also said that she made the claim in 1992.  When questioned about giving those two dates, she seemed to settle on 1987.     

17. Mrs Desfosses said that the person who dealt with the application did not enter the information into the computer and sent the application directly to Canberra.

18. The Respondent searched the hardcopy files of both Mrs Desfosses and her mother-in-law, the care recipient, and found no claim for CP before that of 4 June 1998.

19. When asked why she had done nothing about this matter until 2020, Mrs Desfosses said that she could not do anything about it while she was looking after her mother-in-law. 

20. When asked what she did after 2011, Mrs Desfosses said that after the burial, she complained at Merrylands about never receiving CP and was told she was paid.   She said that her Commonwealth Bank card was lost or never arrived. She complained that the Commonwealth Bank refused to give her payments and closed the account in 2017.   (Ms Balakisnan, who appeared for the Respondent, assisted Mrs Desfosses with respect to her concern about the Commonwealth Bank by providing the telephone number to contact the ombudsman at the Australian Financial Complaints Authority.)

21. In addition to the lack of contemporaneous documentary evidence recording a claim being made for CP before 4 June 1998, the delay in taking steps to raise this issue until 2020, more than 30 years after 1987, weighs very heavily against accepting Mrs Desfosses’s evidence that she made such a claim. I do not accept that she took any action until she raised the matter with the ARO in 2020.

22. The relevant claim for CP was that made in the form stamped 4 June 1998.  The decision to grant CP with effect from 28 May 1998 was correctly made under the legislation which then applied.

23. The reviewable decision of AAT1 made on 25 February 2021 which affirmed the ARO’s decision to pay CP from 28 May 1998 is affirmed subject to one matter discussed below. 

    Mrs Desfosses’s claim that she did not receive CP payments

24. Mrs Desfosses claims that she did not receive CP payments during the period 28 May 1998 until 24 May 2011 and seeks recovery of those payments.  There is no reviewable decision before the Tribunal in respect of that claim.  However, the Respondent has investigated the matter and it is appropriate that I consider the evidence about it given Mrs Desfosses’s concern.

25. The Respondent pointed out occasions when Mrs Desfosses did contact Centrelink to query her CP payments. 

26. On 3 January 2002, she queried whether CP had ceased.  She said that she believed that her partner was using the money. Centrelink advised her that the payment had not been returned and to check with her bank.  Mrs Desfosses also contacted Centrelink about non-receipt of CP on 29 August 2002 and 10 October 2002 when she was given similar advice.

27. The Respondent pointed to three occasions when Centrelink advised Mrs Desfosses of delivery dates of future CP.  

28. There were a number of occasions when Mrs Desfosses made other inquiries about CP, for example, whether she could get a meal allowance.

29. The inquiries Mrs Desfosses made are inconsistent with her claim that she was not being paid CP.

30. On 4 March 2022, the Respondent issued notices to five financial institutions requesting bank statements for Mrs Desfosses.  Those were institutions to which Mrs Desfosses had directed her CP payments be made from 28 May 1998 until 24 May 2011. 

31. Three of those financial institutions provided records.  Two did not because records were no longer available.

32. The bank statements that were produced show that Mrs Desfosses was receiving CP.

33. The available Centrelink and bank records corroborate that Mrs Desfosses was paid CP during the relevant period.

34. Once again, Mrs Desfosses’s delay until 2020 to claim that she had not received CP payments throughout the period 1998 to 2011, is inconsistent with that claim being correct.

35. I do not accept that Mrs Desfosses did not receive CP from 28 May until 24 May 2011. 

    CONCLUSION

36. For the reasons given above, the reviewable decision, being AAT1’s decision made on 25 February 2021, will be affirmed subject to one matter.  That decision referred to 25 May 1998 as the date from which CP was to be paid. That was an error.  The correct date was 28 May 1998.  It is necessary to vary the reviewable decision to that extent.

    DECISION

37. The reviewable decision dated 25 February 2021 is varied to affirm a decision of an officer under the social security law on 29 June 1998, as affirmed by an authorised review officer on 8 December 2020, to pay carer payment from 28 May 1998. 

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

..............................[SGD]..........................................

Associate

Dated: 20 September 2022   

Date of hearing:	12 September 2022
Applicant:	By telephone
Solicitor for the Respondent:	T Balakisnan, Services Australia
G Heggen, Services Australia