DESMAY AMOHANGA and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 894
•19 December 2012
[2012] AATA 894
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1809
Re
DESMAY AMOHANGA
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Dr P McDermott, RFD, Senior Member
Date 19 December 2012 Place Brisbane The Tribunal affirms the decision under review.
……..…………[Sgd]…………………………
Dr P McDermott, RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Carer payment – Start day for payment of benefit – No statutory discretion for earlier start day – Decision under review affirmed
PRACTICE AND PROCEDURE – Jurisdiction – Earlier claim for carer payment rejected – Decision made under social security law – Statutory requirement for review by Social Security Appeals Tribunal – No jurisdiction to review decision in regard to earlier claim
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 2A
Social Security Act 1991 (Cth) s 197B
Social Security (Administration) Act 1999 (Cth) ss 13, 41, 42, 179
CASES
Jolly and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 620
REASONS FOR DECISION
Dr P McDermott, RFD, Senior Member
INTRODUCTION
Miss Desmay Amohanga has made two claims for carer payment. It is accepted that she made a claim for carer payment on 4 July 2001. On 28 November 2011, she made another claim for carer payment. She had earlier, on 14 November 2011, notified Centrelink of her intention to claim carer payment. I have to decide whether Miss Amohanga can be paid carer payment in respect of any period earlier than 14 November 2011.
BACKGROUND
Miss Amohanga made a claim for carer payment on 4 July 2001; the rejection of that claim has yet to be reviewed by the Social Security Appeals Tribunal.
On 14 November 2011, Miss Amohanga was at a Centrelink office when she was enquiring about a benefit for her son. She was then advised by a Centrelink social worker that in view of the disabilities of her daughter,[1] she could make a claim for carer payment in respect of the care that she provides for her. On that date, Centrelink sent Miss Amohanga a letter which advised her that in order for her to be paid that benefit from that date that she was required to make her claim for carer payment within 14 days.
[1] In these reasons, which are a matter of public record, I have decided that it is not necessary to discuss the disabilities of the daughter of Miss Amohanga as there is no issue that her daughter is severely disadvantaged.
On 28 November 2011, Miss Amohanga lodged her claim for carer payment. She also provided a “Carer Payment – Medical Report” which was signed by Dr James Slattery on 21 November 2011.[2] On the second last page of the report Dr Slattery wrote the following remarks:
Apart from visual acuity measurement the rest of this form has been completed by mother.
Miss Amohanga informed the Social Security Appeals Tribunal that she completed most of the answers on the medical report. On a copy of the Social Security Appeals Tribunal decision of 4 April 2012, which was attached to her application to this Tribunal, she wrote:[3]
I accidentally filled form out.
[2] Exhibit A, T-document 10, pp. 55-65, esp. p. 64.
[3] Exhibit A, T-document 1, pp. 1-9, esp. p. 6.
On 28 November 2011, Centrelink granted the claim for carer payment with effect from 14 November 2011.
On 6 January 2012, Miss Amohanga sought payment of her carer payment from 20 February 2001 when she made her initial claim for carer payment. On 17 January 2012, the original decision maker affirmed the decision to grant the carer payment from 14 November 2011. On 10 February 2012, an authorised review officer affirmed that decision. On 4 April 2012, the Social Security Appeals Tribunal affirmed the decision to grant carer payment from 14 November 2011 but not from any earlier date.
On 2 May 2012, Miss Amohanga made an application to this Tribunal for review of the decision of the Social Security Appeals Tribunal. During the preliminary stages of the review by this Tribunal the earlier claim for carer payment that was made by Miss Amohanga on 4 July 2001 was found. That earlier claim has yet to be reviewed by the Social Security Appeals Tribunal.
RELEVANT LEGISLATION
The legislation that I have to administer is the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).
CONSIDERATION
There is no issue that Miss Amohanga is qualified for carer payment. I consider that the Social Security Appeals Tribunal has adopted a beneficial approach in finding that the applicant satisfies the requirements of s 197B of the Act. The report of Dr James Slattery as well as the evidence before me from the school and the occupational therapist discloses that the daughter of Miss Amohanga has a “severe disability or severe medical condition” within the meaning of s 197B of the Act.
The only issue before me is whether Miss Amohanga can be paid carer payment in respect of any period earlier than 14 November 2011.
Miss Amohanga stated that she wished her 2001 claim for carer payment to be considered at the hearing of this application. The Secretary has quite properly conceded that Miss Amohanga made a claim for carer payment on 4 July 2001. However, the decision to reject that claim has not yet been reviewed by the Social Security Appeals Tribunal. This Tribunal does not presently have jurisdiction to review the decision of Centrelink to reject her earlier claim for carer payment. This is because of the operation of s 179 of the Administration Act which provides that this Tribunal can only review a decision which has been reviewed and either affirmed, varied or set aside by the Social Security Appeals Tribunal. In any event this Tribunal has a statutory obligation to determine this application as quickly as possible.[4] I also mention that on 1 June 2009 there was a change in the qualification criteria for carer payment.
[4] See Administrative Appeals Tribunal Act 1975 (Cth), s 2A.
I informed Miss Amohanga that I only had jurisdiction to consider the claim for carer payment that was made on 28 November 2011 and not the earlier 2001 claim which has not yet been reviewed by the Social Security Appeals Tribunal.
It is common ground that Miss Amohanga made her claim for carer payment on 28 November 2011. It is also not in dispute that on 14 November 2011, while at Centrelink premises, she was advised by a Centrelink social worker that she was eligible for the payment of carer payment and that on that date she advised Centrelink of her intention to make a claim for carer payment.
This application raises for consideration what is referred to as the “start day” under social security law. Section 41(1) of the Administration Act provides:
Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person's start day in relation to the social security payment.
Section 42 of the Administration Act also provides:
For the purposes of the social security law, a person's start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2.
Clause 3 of Schedule 2 of the Administration Act provides that where a person is qualified for payment on the day on which the claim is made, the start day is the day of the claim. Section 13(1) of the Administration Act provides that where a claimant makes contact about claiming a payment and subsequently lodges their claim within 2 weeks of the original contact, the original contact date can be deemed as the date the claim was lodged.
I am satisfied that the claim of Miss Amohanga was correctly deemed to have been made on 14 November 2011. This Tribunal has recently decided that there is no provision of the social security law which confers any discretion to pay carer payment from any earlier date.[5] Accordingly, Miss Amohanga cannot be paid carer payment from earlier than 14 November 2011.
[5] Jolly and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 620 at [8] per Senior Member Kenny.
When Miss Amohanga gave her evidence she mentioned that she had difficulties in obtaining assistance for her daughter. I would recommend that a social worker should be assigned, as a matter of urgency, to provide assistance to Miss Amohanga so that she obtains support for her daughter. Miss Amohanga, in her evidence, stated that she was concerned for the safety of her daughter.
DECISION
I affirm the decision under review.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member
................[Sgd].......................................
Administrative Assistant
Dated 19 December 2012
Date of hearing 13 December 2012 Applicant In Person
Advocate for the respondent Ms Brooke Carruthers
1
1
0