Gleeson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2009] AATA 739

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 739

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1168

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		JOHN GLEESON

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr B H Pascoe, Senior Member  

Date25 September 2009

PlaceMelbourne

Decision The Tribunal affirms the decision under review.  

[sgd] B H Pascoe

Senior Member

SOCIAL SECURITY – carer payment – care receiver admitted permanently to an institution – date admitted permanently – delay in signing resident agreement – debt raised for overpayment – whether special circumstances allowing debt to be waived.

Social Security Act 1991 ss 198, 198AA, 198AAA, 1236, 1237A, 1237AAD

Oberhardt v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1923

REASONS FOR DECISION

25 September 2009 Mr B H Pascoe, Senior Member  

1.      This is an application to review a decision of the Social Security Appeals Tribunal (SSAT) of 17 February 2009 which affirmed a decision of the respondent made on 20 August 2008 to recover a carer payment debt of $4,458.20 in relation to the period from 10 May 2009 to 3 September 2007. 

2.      At the hearing, the applicant, Mr J Gleeson was unrepresented.  The respondent was represented by Ms H Weston, a solicitor.  Evidence was given by Mr Gleeson. 

3.      Mr Gleeson was granted carer payment from 27 October 2000 on the basis of care provided to his mother, Mrs E Gleeson.  On 29 November 2006, Mr Gleeson advised Centrelink that his mother was hospitalised on 28 November 2006.  On 27 December 2006 he further advised that she would be hospitalised until 31 January 2007.  It would appear clear that during this period, Mrs Gleeson was in temporary care at the Glenhuntly Nursing Home.  It is not in dispute that, on 1 February 2007 Mrs Gleeson was moved to the permanent ward of that nursing home.  In June 2007 she broke her hip and was taken to the Alfred Hospital.  On return to the nursing home it was discovered that a formal resident agreement had not been completed.  An agreement was prepared and signed on 16 August 2007. 

4.      Mr Gleeson was contacted by Centrelink on 4 September 2007 when he confirmed that his mother had entered care in February 2007.  He was advised that carer payment was payable for 14 weeks from admission date and that an overpayment would be investigated.  On 29 May 2008, a decision to raise and recover a debt was made.  That decision was affirmed by an Authorised Review Officer on 20 August 2008.  On 19 September 2007 Mr Gleeson lodged a claim for newstart allowance which was granted from that date. 

5. Section 198 of the Social Security Act 1991 (the Act) sets out the qualifications for carer payment and, in sub-section (3) states:

The care must be provided in a private residence that is the home of the care receiver or care receivers. 

Short term or temporary hospital care is provided for in s 198AA(1) which states:

198AA.(1) If:

(a)a person (the carer) is participating in the care of a disabled adult, a profoundly disabled child, a disabled child, or a dependent child [emphasis added] of a disabled adult, (the hospitalised person) in hospital; and

(b) it is reasonable to assume that, if the hospitalised person were not in hospital, the carer would qualify for carer payment for the hospitalised person or for the hospitalised person and another person or persons; and

(c)       either:

(i)        the hospitalised person is terminally ill; or

(ii) it is reasonable to expect that he or she will reside in his or her private home upon leaving hospital;

then the carer qualifies for carer payment.

198AA.(2)        Limit on qualification under subsection (1)

198AA.(2) However, the period, or the sum of the periods, for which the person can be qualified under subsection (1) is 63 days in any calendar year.

Section 198AAA deals with a care receiver is admitted to an institution and states:

198AAA.(1) This section applies if:

(a)carer payment is payable to a person who has ordinarily been providing constant care for a care receiver or care receivers; and

(b) the person ceases to be qualified for the payment because he or she ceases to provide constant care for the care receiver or any of the care receivers as a result of the care receiver being admitted permanently to an institution where care is provided for the care receiver.

198AAA.(2)     The carer payment continues to be payable to the person for 14 weeks after the person ceases to be qualified, and then ceases to be payable.

6.      Mr Gleeson argued that his mother was not admitted permanently to the nursing home until the resident agreement was signed in August 2007.  He maintained that, until the legal agreement was executed, her occupation was under a grace and favour arrangement.  He did accept that both he and the nursing home had regarded Mrs Gleeson as being in permanent care as at 1 February 2007 and that normal payment and services were provided from that date on the basis of her being in permanent residence.  Nevertheless, he submitted that she was not legally in such permanent care until the agreement was signed. 

7.      It is clear from prior decisions and the normal meaning of permanently that, for the purposes of s 198AAA, admitted permanently means admitted on a basis which is lasting or intended to last indefinitely, not temporary, enduring or abiding where the care receiver has given up her previous residence without the expectation of returning. While it may have been an unusual circumstance for the parties to overlook the signing of a resident agreement, I am in no doubt that Mr Gleeson, Mrs Gleeson and the nursing home regarded and treated Mrs Gleeson as having been admitted permanently from 1 February 2007. In my view the delay in signing the agreement did not alter this position. There was a clear oral agreement and the only effect of the delay in formalising that agreement may have been the right to change the fees. I find that it did not effect the date of admission.

8.      It follows that Mr Gleeson ceased to be entitled to carer payment after 14 weeks from 1 February 2007 or 10 May 2007.  Consequently he was overpaid to the extent of payments beyond 10 May 2007 and has incurred the relevant debt of $4,458.20. 

9. Mr Gleeson accepted that recovery of the debt would not cause financial hardship and it is clear that there is no basis for the debt to be written off pursuant to s 1236 of the Act. The debt cannot be attributed solely to an administrative error made by the Commonwealth. While Centrelink was involved in the assessment of nursing home fees and it could be argued that it ought to have known that Mrs Gleeson had been admitted permanently, it is clear that Mr Gleeson was directly aware of her permanent admission on 1 February 2007 but failed to comply with his obligation to inform Centrelink of any change in care agreements until 4 September 2007. Consequently, the debt cannot be waived pursuant to s 1237A of the Act.

10. Section 1237AAD of the Act allows a debt to be waived where it did not result from a person knowingly making a false statement or failing or omitting to comply with a provision of the Act and there are special circumstances. The respondent accepted and the Tribunal accepts that Mr Gleeson did not knowingly fail to inform of the change in residence arrangements. Mr Gleeson submitted that there were special circumstances. The first of these was what he maintained were unique circumstances of the six months delay in having the formal agreement executed which should have been signed within 21 days.  The second special circumstance submitted by Mr Gleeson was that, if he had been aware of the cessation of carer payment from 10 May 2007, he would have then applied for and been entitled to newstart allowance from that date rather than 19 September 2007.  As he was aware that he could not receive both benefits, he was unable to claim newstart allowance any earlier than 19 September 2007. 

11. In relation to the first of the alleged special circumstances, it may well be that the delay in legally formalising the permanent residency arrangements may well have been unusual. However, I am satisfied that Mr Gleeson is using this argument in hindsight. Until August 2007 it seems clear that both Mr Gleeson and the nursing home accepted and dealt with the accommodation of his mother as being permanent. Section 1237AAD requires there to be special circumstances…that make it desirable to waive the debt.  I cannot accept that the delay in formalising the permanent admission amounts to special circumstances by reason of which strict enforcement of the liability created by the overpayment would be unjust, unreasonable or otherwise. 

12. In relation to the second argument of special circumstances, it is difficult to accept that a failure to claim newstart allowance prior to 19 September 2007 satisfies the requirement. Before the SSAT, Mr Gleeson accepted that he was not looking for work prior to September 2007. It is pure conjecture to consider whether he may have been qualified for newstart allowance at 10 May 2007. He had made no claim prior to 19 September 2007. He had received the standard notifications from Centrelink in September 2006, November 2006 and April 2007 reminding him of his obligation to inform Centrelink of any change in the details giving rise to his entitlement to carer payment. In these circumstances, it cannot be accepted that a failure to make a claim for newstart allowance prior to 19 September 2007 amounts to special circumstances for the purposes of s 1237AAD. In cases such as Oberhardt v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1923 it was found appropriate to consider notional entitlement to alternative benefits in considering special circumstances. In this case, apart from the difficulty in being able to find that there was a notional entitlement to newstart allowance between May and September 2007, the failure to meet the obligation to inform of the change in circumstances mitigates against a finding of special circumstances making it desirable to waive the debt.

13.     It follows that the decision under review should be affirmed. 

I certify that the thirteen [13] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B H Pascoe, Senior Member

Signed: Leah Berardi
  Clerk

Date of Hearing  31 August 2009 
Date of Decision  25 September 2009
Advocate for the Applicant       Self Represented
Advocate for the Respondent   Ms H Weston, DLA Phillips Fox