Di Paola and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2009] AATA 437

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 437

ADMINISTRATIVE APPEALS TRIBUNAL      )   

)            No: 2008/4088

GENERAL ADMINISTRATIVE DIVISION        )   

ReAngela Di Paola

Applicant

AndSECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

TribunalDr T Schafer, Member

Date18 June 2009

PlaceSydney

DecisionThe decision under review is affirmed.

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

Dr T Schafer

Member

CATCHWORDS

SOCIAL SECURITY – Carers payment – administrative error – whether back payment can be made in arrears – the decision under review is affirmed

…

RELEVANT ACT:

Social Security (Administration) Act 1999 –  s 109

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REASONS FOR DECISION

18 June 2009 Dr T Schafer, Member

Background

1.      Ms Di Paola has been caring for her mother, Mrs Giovanna Di Paola, on a full-time basis, since 2004.

2.      On 12 September 2006, Ms Di Paola lodged a claim for carer payment as the full-time carer for her mother.

3.      On 15 November 2006, Centrelink wrote to Ms Di Paola requesting further information about her claim, including information about how she had been supporting herself prior to submitting her claim for carer payment.

4.      On 16 November 2006, Ms Di Paola responded to Centrelink and advised that in the two years prior to claiming carer payment, she had been supporting herself financially from her savings while caring for her mother.

5.      On 24 November 2006, Centrelink wrote to Ms Di Paola approving her claim for carer payment.  However, the letter from Centrelink stated that fortnightly earnings of $900 were taken into account in calculating the rate of carer payment she was entitled to.

6.      Subsequently, Centrelink wrote to Ms Di Paola on 17 June 2007, 27 July 2007, 11 January 2008 and 4 April 2008 regarding the rate of her carer payment.  On each occasion, the letters stated that fortnightly earnings of $900 were taken into account in the calculation of Ms Di Paola's carer payment.  The letters also stated that Ms Di Paola should contact Centrelink if she did not agree with the details in the letters and she should request a review within 13 weeks of the date of the letter, otherwise any payments in arrears would only be paid from the date she contacted Centrelink.

7.      On 19 May 2008, Ms Di Paola contacted Centrelink regarding her rate of carer payment.  She advised Centrelink on that date that the last time she was employed was approximately 2 years prior to claiming carer payment.

8.      Effectively, this means that because an amount of $900 for fortnightly earnings was taken into account in the calculation of Ms Di Paola's carer payment, from the date Ms Di Paola was granted her carer payment, she was receiving less payment than she should have been and was actually entitled to.

9.      On 6 June 2008 an Authorised Review Officer (ARO) decided that Ms Di Paola could be paid carer payment in arrears from 4 April 2008 because Ms Di Paola contacted Centrelink on 19 May 2008 to query her carer payment, which was within 13 weeks of Centrelink's letter of 4 April 2008.  However, the ARO determined that Ms Di Paola could not receive any payment in arrears prior to 4 April 2008 because she had not queried her carer payment within 13 weeks of the dates of the other letters received on 17 June 2007, 27 July 2007, 11 January 2008.

10.     On 11 August 2008, the Social Security Appeals Tribunal (SSAT) affirmed the decision of the ARO.  In the reasons for their decision, the SSAT stated that they accepted the reasons given by Ms Di Paola that, in her view, she had no reason to query her rate as she had given all her details to Centrelink and assumed she was receiving the correct amount.  The SSAT stated, however, that they must apply the law, there was no other section to allow any further back payment, and the SSAT must agree with the Centrelink decision.

11.     On 28 August 2008, Ms Di Paola applied to this Tribunal for a review of the SSAT's decision.

Issue

The issue that the Tribunal is required to determine is whether Ms Di Paola's carer payment can be paid in arrears for the period from 12 September 2006 to 3 April 2008.

Legislation

12. Section 109(1) of the Social Security (Administration) Act 1999 provides:

If:

(a) a decision (the original decision) is made in relation to a person's social security payment; and
(b) a notice is given to the person informing the person of the original decision; and
(c) within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d) the favourable determination is made as a result of the application for review;

the favourable determination takes effect on the day on which the determination embodying the original decision took effect.

13.     Section 109(2) provides that if the person applies for review more than 13 weeks after notice is given then the favourable determination takes effect on the day the application for review was made.

Decision

14.     It is not disputed that when Ms Di Paola applied for carer payment on 12 September 2006, she advised Centrelink that she was not working.  This was also confirmed when she submitted a response on 16 November 2006 to Centrelink's request for information dated 15 November 2006.

15.     Accordingly, it is not disputed that Centrelink's computer records which showed from the date Ms Di Paola's claim was made that she derived an employment income of $900 per fortnight was an error on the part of Centrelink.

16.     The letters Ms Di Paola received from Centrelink on 24 November 2006, 17 June 2007, 27 July 2007, 11 January 2008 and 4 April 2008 each stated that Centrelink was taking into account fortnightly earnings of $900 per fortnight in the calculation of Ms Di Paola's carer payment.  Each letter further stated that Ms Di Paola should contact Centrelink if she did not agree with what was in the letter and seek a review within 13 weeks of the date of the letter, otherwise any payment in arrears would only be paid from the date on which she contacted Centrelink.

17.     Ms Di Paola admits that she did not contact Centrelink until 19 May 2008.  That contact was within 13 weeks of the letter Ms Di Paola received on 4 April 2008, and it is not disputed that this is taken as the date from when a review of the decision in Centrelink's letter of that date was requested.  Since Ms Di Paola received a favourable decision in relation to that review, back payment of her carer payment could be made to 4 April 2008.

18.     However, unfortunately for Ms Di Paola, a review was not requested within 13 weeks of any of the notices received on 24 November 2006, 17 June 2007, 27 July 2007 and 11 January 2008.  This means that, according to section 109(2) of the Administration Act, back payment of Ms Di Paola's carer payment cannot be made before 4 April 2008.

19.     The Tribunal notes Ms Di Paola's evidence that she had no reason to think that Centrelink would make an error in calculating the rate of her carer payment and, therefore, it did not occur to her that she should carefully check the notices when she received them.  While the Tribunal accepts this evidence, there is no discretion in the legislation, regardless of the circumstances, to take account of Ms Di Paola's failure to review the notices when she received them and contact Centrelink within 13 weeks of the date of the notices to request a review of Centrelink's decision in relation to her carer payment.

20.     Unfortunately, the Tribunal is bound to make a decision in accordance with the legislation.  Because Ms Di Paola did not request a review within 13 weeks of the dates of the notices of 17 June 2007, 27 July 2007 and 11 January 2008, she is not entitled to back payment of her carer payment from the dates of those notices.  Because Ms Di Paola requested a review on 19 May 2008 of the notice received from Centrelink on 4 April 2008, and the request for review was within 13 weeks of the date of the notice, she is entitled to back payment of her carer payment to 4 April 2008.

21.     Thus, the Tribunal affirms the decision under review for the reasons stated above.

22.     Finally, the Tribunal notes that Ms Di Paola submitted a claim for compensation under Centrelink's Customer Compensation Scheme.  A copy of the decision dated 6 March 2009 in relation to her claim was provided to the Tribunal.  The Tribunal notes that the Delegate stated that, whilst it was acknowledged that Centrelink incorrectly maintained $900 per fortnight in earnings in respect of Ms Di Paola even though she notified Centrelink that she had ceased work, he was unable to conclude that Centrelink's error caused the loss.

23.     There is no doubt in the Tribunal's mind that the error on Centrelink's part caused Ms Di Paola's loss.  Ms Di Paola provided the correct information to Centrelink in submitting her claim for carer payment.  Centrelink incorrectly applied fortnightly earnings of $900 per fortnight in calculating her carer payment.  Had Centrelink not made the error, Ms Di Paola would have been receiving the correct amount of carer payment, to which she was entitled.

24.     The only reason the Tribunal is unable to make a decision in Ms Di Paola's favour is that it is bound by the provisions in the legislation.  Had there been discretion in the legislation, it would surely have been exercised in the present circumstances.  It is understood that this would be little comfort for Ms Di Paola, who has had to bear the loss caused by an error made by Centrelink simply because she did not realise the error and bring it to the attention of Centrelink early enough.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of DR T SCHAFER, MEMBER.

Signed:   ......[sgd].......................
                Associate

Date of Hearing:  8 April 2009
Date of Decision:  18 June 2009
Appearance for the Applicant:           Self-represented
Appearance for the Respondent:      Mr K Bullock, Centrelink Legal Services
  and Procurement Branch