Fagan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Abela (Joined Party)

[2009] AATA 200

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 200

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3444

GENERAL ADMINISTRATIVE DIVISION        )

RePATRICIA FAGAN

Applicant

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

Respondent

And          JEFFREY ABELA

Joined Party

DECISION

TribunalDr J Campbell, Member

Date24 March 2009

PlaceSydney

DecisionThe decision under review is affirmed with the recommendation that issues pertaining to distribution of a particular benefit to Ms Fagan and Mr Abela be the subject of a mediation process encompassing all outstanding matters.

..................[sgd]..........................

Dr J Campbell
  Member

CATCHWORDS

Social security – carer’s allowance – cancellation – issue of shared care – failure to advise – failure to enquire – legal constraints – administrative error.

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RELEVANT ACT/S

Social Security Act 1990: ss 953(1), 964, 981, 974

Social Security (Administration) Act 1999: ss 11, 13, 16, 109, 129, Schedule 2, clause 16

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CITATIONS

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REASONS FOR DECISION

Dr John Campbell, Member

summary

1.      Ms Fagan is the applicant in this matter.  Mr Abela, Ms Fagan’s former partner, was joined as a party as he is a party possibly affected by the decision made in this matter.

2.      Ms Fagan was hospitalised with mental and physical illness in March 2002 for three weeks, having separated from her former husband.  At the time of her hospitalisation, Ms Fagan had care of her son, Rhys, born in 1996 and who suffered from an autistic spectrum disorder.  At that time, Ms Fagan was receiving a carer’s disability allowance in relation to the care of Rhys.

3.      On 8 April 2002, Ms Fagan informed Centrelink that her son was no longer in her care.  Ms Fagan also advised Centrelink at that time that Rhys had not been in her care since 1 March 2002, and since that time he had been in the care of her ex-husband and that this change was recorded as permanent.  Ms Fagan is recorded as stating that she was unable to advise earlier as she was in a psychiatric hospital and was heavily medicated (Exhibit R2, page 28).

4.      On 9 April 2002, Ms Fagan informed Centrelink that she was applying for disability support pension, about which social workers at the hospital had been forwarded information on her behalf.  Further, it is noted that Ms Fagan either contacted, or was contacted by, Centrelink on 4 March 2002 (two phone activities recorded and one contact by Centrelink), 6 March 2002 (two contact activities by Centrelink), 18 March 2002 (action regarding Disability Support Pension (“DSP”) claim), 19 March (action regarding Newstart Allowance), 25 and 28 March 2002 (activities concerning child care benefit claim form), 4 April 2002 (medical examination required in relation to DSP claim), 5 April 2002 (Ms Fagan is recorded as providing advice that Rhys is in his father's care, that she has not seen Rhys for two months, and that she would not be receiving Rhys back until her illness is over) (Exhibit R2, pages 29-32).

5.      On 10 April 2002, Ms Fagan is recorded as contacting Centrelink concerning child disability allowance.  On this date, Centrelink advised Ms Fagan that her carer’s allowance was cancelled at her request.  On 20 April 2002, Centrelink advised Ms Fagan that she had been overpaid carer’s allowance for the period 1 March 2002 to 4 April 2002.

6.      Mr Abela acknowledged that he had applied for a carer’s allowance in relation to Rhys from 4 March 2002, that this was approved and that he continued to receive such payments either in whole or in part until March 2007, at which time Ms Fagan became the sole carer for Rhys.  Such approvals and payments are summarised in a letter forwarded to Mr Abela on 10 May 2002 (Exhibit R4) and the three-page exhibit of payments made (Exhibit R3).

7.      Centrelink records (Exhibit R2) provide a history of further interactions and activities concerning Ms Fagan during the period 20 April 2002 to 27 March 2006.  The significant majority of such interactions is concerned with issues relating to DSP, with in excess of 10 matters being concerned with family tax benefits issues.

8.      On 19 January 2007, Ms Fagan lodged a claim for carer’s allowance for Rhys.  On 7 February 2007, Centrelink advised Ms Fagan that her claim for carer’s allowance had been granted with date of effect being 19 October 2006.

9.      On 15 February 2005, Ms Fagan requested a review of the decision to commence payments with date of effect being 19 October 2006.

10.     On 7 March 2007, Centrelink advised Ms Fagan that the date of effect for payment of the carer’s allowance had been correctly determined in accordance with the back-dating provisions of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”). In so determining, the authorised review officer noted that Ms Fagan had not requested a review of the decision to cancel her carer allowance in April 2002 within 13 weeks of being notified of the cancellation decision.

11.     On 27 June 2008, the Social Security Appeals Tribunal affirmed the decision.

issues

12.     The relevant issues in this matter are:

(a)Has the date of effect for payment of carer’s allowance to Ms Fagan as a consequence of her application of 19 January 2007 been correctly determined?;

(b)If so, are there any matters arising from the consideration of all the material which are a cause for concern to the extent that consideration for an act of grace payment be contemplated?

consideration and findings

13.     I note that the factual issues relevant to this matter are not in dispute.  Simply put they are:

(a)Ms Fagan and Mr Abela separated in March 2002, at which time Ms Fagan was admitted to hospital for psychiatric care for three weeks, with the son, Rhys, moving to the care of Mr Abela;

(b)Payment of carer's allowance to Ms Fagan was ceased at her request on 10 April 2002.  Payment of carer’s allowance to Mr Abela was commenced on 4 March 2002 and continued to be paid in whole or in part until 2 March 2007, after which time payment has been paid in relation to Ms Fagan; and

(c)That throughout the period April 2002 to early March 2007, both Ms Fagan and Mr Abela have undertaken shared care of Rhys on a basis agreed by both and documented to Centrelink (T18).

14.     Further, I note the following:

(a)After careful examination of the material before me, I am unable to define a document or circumstance in which Ms Fagan was either advised or informed by Centrelink that with carer’s allowance, shared care benefits were available and could be paid to two separate carers in defined circumstances.  In so stating, I must limit such a finding to the initial granting of carer’s allowance to Ms Fagan, the circumstances surrounding the cancellation of carer’s allowance in April 2002 and the various interactions nominated earlier between Centrelink and Ms Fagan prior to her seeking payment of carer’s allowance in January 2007;

(b)Similarly, I am unaware of any material during the same period from either Ms Fagan or Centrelink that would define circumstances in which Ms Fagan made enquiry or sought advice from Centrelink concerning shared care carer’s allowance payments;

(c)Further, I am unable to define a document or circumstances during the same period of time in which Mr Abela was advised or informed by Centrelink of such shared care arrangements in the context of carer’s allowance.  As with Ms Fagan, there is also no evidence before me from any party, or evidenced in the documentation that Mr Abela made enquiry or sought advice from Centrelink upon such an issue;

(d)That Centrelink was placed on notice that there had been a marriage breakdown, that Ms Fagan had been hospitalised for a mental illness and had been granted a disability support pension and had, at the time of advising Centrelink of changed care arrangements for Rhys on 5 April 2002, stated that she would inform them of further arrangements once she had recovered from her illness.  I note that there is no material before me that nominates that Ms Fagan did advise Centrelink of revised care arrangements for Rhys until issues surrounding family tax benefit payments were pursued in March 2006; and

(e)I observe that Centrelink, in their letter of approval of payment of carer’s allowance to Mr Abela on 10 May 2002 (Exhibit R4), did inform Mr Abela that he was required to advise Centrelink if Rhys temporarily stopped receiving his daily care and attention to be admitted to hospital or for any other reason (even if it were just overnight).  I would also note that Ms Fagan received similar information in two letters from Centrelink, dated 8 and 10 April 2002 – this being at a time when she was recovering from her illness and had sought to have the carer’s allowance cancelled.

15.     In addressing issues raised by Ms Fagan’s appeal, I note that she made a claim for carer’s allowance on 19 January 2007.  I note that the claim was granted on 7 February 2007 and backdated twelve weeks to 19 October 2006.  Ms Fagan is of a view that the claim should be backdated to the date of cancellation (10 April 2002) as shared care for Rhys occurred over the period 10 April 2002 to date of approval (7 February 2007).  In making such a contention, Ms Fagan submits that she was misled and misinformed at the time of cancellation. In the light of her illness at that time, Centrelink failed to properly inform her about shared care and carer’s allowance, a state of affairs that remained until issues of shared care arrangements arose in 2006/2007.

16.     I note that s 981(1) of the Social Security Act 1990 (Cth) (“the Act”) permits the Secretary to make a declaration where two people are qualified for carer’s allowance for the same care receiver.  Until such a declaration is made, only one of the two people involved can receive carer’s allowance for the care receiver pursuant to s 964 of the Act.

17. Section 11 of the Administration Act requires a person to lodge a claim in order that a social security benefit may be granted. Section 13 of the Administration Act deals with circumstances where an individual contacts the department on a claim issue and follows through with the lodgement of a written claim within 14 days, with the date of lodgement deemed to be the date of the original contact. Section 16 of the Administration Act deals with the lodgement process. Sections 41 and 42 of the Administration Act provide for commencement of payment of a social security benefit on a start day, defined as a general rule within clause 3 of Schedule 2 of the Administration Act as the date on which the claim is made. Clause 16(2) of Schedule 2 defines the start day in relation to carer’s allowance. In the situation where the claim for carer’s allowance has been made more than 12 weeks after the day on which the person became qualified for the allowance, the person’s start day is the first day of the period of 12 weeks ending immediately before the date on which the claim was made.

18.     In returning to the circumstances of this matter and in light of the statutory provisions outlined, I would conclude that Ms Fagan’s claim has been correctly determined with the start date for commencement of benefit payment to be 12 weeks prior to the date of lodging the claim, the later date being 19 January 2007.

19. It is also noted that Ms Fagan’s contentions may relate to the cancellation decision of 10 April 2002. As such, any request for a review of that decision must be made within 13 weeks, where a favourable determination is made, for the new determination to take effect on the day the original determination was made. Where the request for review is lodged more than 13 weeks after the date of the original determination, any favourable determination will commence on the date of application for review was made (ss 109(1), (2) of the Administration Act).

20. In considering Ms Fagan’s factual circumstances, I conclude that the provisions contained within s 109 of the Administration Act do not assist Ms Fagan in achieving an earlier start date for payment of shared care carer’s allowance.

21.     In accordance with the provision nominated, I conclude that Ms Fagan’s claim for carer’s allowance has been correctly assessed.

22.     Having concluded the matter as I have, I remain concerned that Ms Fagan’s experiences highlight a number of issues.  These issues include the circumstances of her state of health and the information that she appears not to have received from Centrelink as regards shared care carer’s allowance at the time of cancellation of carer’s allowance in April 2002.  In such circumstances, I consider Centrelink enjoyed an onus to provide Ms Fagan with the necessary information to understand her entitlements, which would allow her to make an informed decision.  I note that issues pertaining to shared care carer’s allowance payments were introduced/raised in 1999.

23.     Further, I would observe in this matter that carer’s allowance has been paid by Centrelink to Mr Abela for the period in question (4 March 2002 – October 2006).  I am mindful that both Ms Fagan and Mr Abela remained unaware of shared care carer’s allowance payments during this extended period of time.  I would consider such unawareness arose from a lack of enquiring by both Ms Fagan and Mr Abela and by a lack of information provided to Ms Fagan by Centrelink.

24.     In summary, the issues in this matter have all arisen as a consequence of inadequate information exchange between the parties.  Each party may well have reasons as to why the information exchange has been inadequate, but each in their own way have made a contribution to the inadequacy of the information exchange.  It would be my belief that there may be other issues arising from the inadequacy of the information exchange.  Such issues may involve Ms Fagan and Mr Abela believing that Centrelink has unfairly treated them in benefit distribution.  I would suggest that in the absence of any evidence indicative of an underpayment of a benefit by Centrelink, issues pertaining to distribution of a particular benefit to Ms Fagan and Mr Abela be the subject of a mediation process encompassing all outstanding matters.

25.     The decision under review is affirmed.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Dr John Campbell, Member

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

Associate

Date/s of Hearing:  4 February 2009
Date of Decision:  24 March 2009
Appearance for the Applicant:       Self-represented
Solicitor for the Respondent:          Raewyn Harlock, Centrelink Legal Services
Appearance for the Joined Party:  Self-represented