Garcia and Secretary, Department of Family and Community Services

[2005] AATA 680

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 680

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2005/51

GENERAL ADMINISTRATIVE DIVISION		)
Re		FRANCISCA GARCIA

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date18 July 2005

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

(Signed)

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Mobility Allowance – arrears payable before date of claim – start day – decision affirmed

Social Security (Administration) Act 1999 ss 11, 30, 41, 42

REASONS FOR DECISION

18 July 2005   Senior Member L Hastwell

1.      On 8 May 2003 the applicant lodged a claim for a Mobility Allowance.  Her claim was initially refused, but after a further report was provided, that allowance was granted on 8 July 2003, backdated to 8 May 2003.  The applicant appealed on the basis that she wanted back payment of arrears to a date several years earlier when she commenced working at STEP Enterprises (STEP).  On 2 February 2005 the Social Security Appeals Tribunal (the SSAT) affirmed the decision under review.  The applicant has applied for a review of that decision to this Tribunal.

legislation

2.      The relevant legislation is contained in the Social Security (Administration) Act 1999 (the Administration Act). Section 11(1) of the Act provides:

“(1)Subject to subsection (2) and Subdivision B, a person who wants to be granted:

(a)       a social security payment; or

(b)       a concession card;

must make a claim for the payment or card in accordance with this Division.”

3. Sections 41 and 42 of the Administration Act state that a person’s payment starts from the “start day” which is worked out in accordance with Schedule 2 to the Administration Act. The start day for a person qualified for a payment is described in Clause 3 of Schedule 2 as follows:

“Start Day – general rule

3(1)     If:

(a)      a person makes a claim for a social security payment; and

(b)the person is qualified for the payment on the day on which the claim is made;

the person’s start day in relation to the payment is the day on which the claim is made.”

issues

4.      The issues for the Tribunal to determine are:

·What day is the start day for the applicant’s Mobility Allowance?

·Is there a date earlier than the start day from which Mobility Allowance can be paid?

the hearing

5.      The applicant represented herself and gave her evidence assisted by an interpreter in the Spanish language.  The respondent (the Department) was represented by Ms Powell, a Departmental advocate.

6.      The applicant told the Tribunal that she had been working at STEP since 1999, doing a whole range of work, including gardening and cleaning.  She is paid a very minimal wage for this work - $1.50 per hour initially, but recently that increased to $3.00 per hour.  The amount of time that she has worked varied, but she has always worked part-time, and presently she is working around 10 hours per week.

7.      The applicant separated some six years ago from her husband, and has resided on her own in Housing Trust accommodation since that time.

8.      In May 2003 the applicant heard from a co-worker at STEP about Mobility Allowance, and discovered that most of the people working at STEP were recipients of that allowance.  She considered it most unfair that other people had been receiving that payment, yet she had been working at STEP longer than many of those workers and had not been told about the allowance by anyone.  She has been seeing a social worker for many years, as she has suffered from mental illness for many years, and she considers that it is only reasonable that her Mobility Allowance be back paid to the time when she started at STEP in 1999. 

9.      The applicant acknowledged that her Centrelink payment was not affected by the small wage that she was earning, but it would appear that her Housing Trust rental is quite significantly affected by the amount that she earns from STEP, and this was an issue she wanted to bring to the Tribunal’s attention. 

10.     In her view, the applicant said she would have been eligible for Mobility Allowance many years ago as she has always had problems using public transport, and when she was still residing with her husband, he frequently had to assist her with transport.

11.     The applicant is now incensed at being refused arrears of Mobility Allowance.  In her view, she should have been made aware of the existence of that allowance by Centrelink, or by STEP many years ago.  She was also cross that the Housing Trust is able to access Centrelink information and adjust her rental accordingly.  She considers that she has been badly treated at the hands of the Department.  She also had a particularly bad experience when the Department had called the police to have her removed from premises, as a result of which she had been arrested by the police and had spent 12 days in jail.

12. The Department’s position was that there is simply no provision in the Administration Act to allow payment of arrears prior to the date of claim. There was nothing specific to allow backdating of Mobility Allowance, and the only provisions that did allow any backdating are very limited. When a person contacts the Department and then lodges a claim within 14 days, there can be backdating to the date of the claim. However, that is not applicable in this case. The Department also submitted that there was no applicability of the provision for 13 weeks backdating which can only occur to the date of actual contact with the Department with respect to the specific allowance.

discussion of the evidence and finding of facts

13.     The applicant was a straightforward witness, who felt genuinely aggrieved at the fact that no one had advised her of the possibility of applying for this allowance.  She is clearly a hard-working woman, who has dealt courageously with a significant illness over the years, and she feels it is important that she speak for those that she considers are treated unfairly by the system.

14.     The applicant lodged an application for Mobility Allowance on 8 May 2003.  This was the first contact that she made with the Department with respect to this allowance.

15.     The Tribunal is not in a position to make any finding as to when the applicant became disabled to the extent that she would have received Mobility Allowance prior to 8 May 2003.  It is probably fair to assume that her disability may well have given rise to eligibility had she made contact with the Department at a time prior to 8 May 2003. 

16.     The applicant received payment of Mobility Allowance from the date of claim after obtaining further medical evidence in support of her claim.

application of the law

17.     The law in this instance is quite clear, and the applicant acknowledged that there was probably little that the Tribunal could do to assist her. 

18. Section 11(1) of the Administration Act provides that a person must make a claim if they want to be granted a Social Security payment. In this instance, no claim was made until 8 May 2003.

19. Section 41(1) of the Administration Act provides that the payment becomes payable on the person’s “start day” unless another provision of the Social Security law provides otherwise. The person’s start day is calculated in accordance with Schedule 2 of the Administration Act.

20. Clause 3(1) of Schedule 2 states that a person’s start day is the day on which the claim is made.

21.     In this instance the claim was made on 8 May 2003, which is the start day.  Initially the claim was rejected, but after further consideration and further evidence being provided to the Department, it was backdated to the original claim day. 

22. The Tribunal looked for any other provision that may allow for backdating of the allowance. The only possible provisions are contained in s 30(1) or s 30(2) of the Administration Act, but again those provisions provide for a backdating only to the day of initial notification to Department where a person then does not lodge a claim immediately. There is no applicability of s 30(1) or s 30(2) in this case. These provisions cannot assist the applicant to have her payment backdated to any earlier than the date on which she lodged her claim, being the date she made initial contact with the Department, namely 8 May 2003.

23.     It is surprising that the applicant, who has had assistance from social workers over the years and has worked at STEP for many years, had not previously been made aware of this allowance.  She may have qualified at an earlier stage, and any funds are of assistance to her, given that on her account she is penalised quite heavily in terms of an increase in her Housing Trust rental as a result of her receipt of a very modest payment in return for her endeavours at STEP.  The Tribunal is sympathetic to the applicant’s complaint, but the law is quite clear and the Tribunal has no capacity to backdate the Mobility Allowance payments.

24.     The Tribunal was concerned at the incident described by the applicant whereby she was arrested as a result of her refusal to leave a Centrelink office.  Because of her inability to understand a bail agreement she remained in jail for a number of days.  It does explain her sense of injustice and anger about the whole issue of her contact with Centrelink.  The Tribunal suggested that she consider taking the matter up with the Commonwealth Ombudsman, or with the Police Complaints Authority if she felt she had a genuine grievance that should be investigated by an independent body.

25.     In the circumstances the Tribunal affirms the decision under review, and this means that the application is not successful.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         ...........J Coulthard.......................................
  Associate

Date of Hearing  1 July 2005
Date of Decision  18 July 2005
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Ms J Powell
Solicitor for the Respondent     Centrelink Legal Services Branch