Grainger and Department of Family and Community Services
[2000] AATA 1116
•18 December 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1116
ADMINISTRATIVE APPEALS TRIBUNAL)
Nº N99/1058
GENERAL ADMINISTRATIVE DIVISION)
Re: PENNIE GRAINGER
Applicant
And: SECRETARY TO THE
DEPARTMENT OF FAMILY AND
COMMUNITY SERVICES
Respondent
DECISION
Tribunal: Mrs H.E. Hallowes, Senior Member
Date: 18 December 2000
Place: Sydney
Decision:The decision under review is affirmed.
(sgd) H.E. Hallowes
Senior MemberSOCIAL SECURITY — child disability allowance — date from which payable — issues between applicant's spouse and Centrelink concerning any entitlement with respect to child and the provision of a claim form
Social Security Act 1991 ss.957, 958, 959, 960, 961, 962, 963
Re Brammer and Secretary, Department of Family and Community Services
[2000] AATA 310
REASONS FOR DECISION
18 December 2000 Mrs H.E. Hallowes, Senior Member
This application concerns the date from which child disability allowance ("CDA") can be paid to Mrs Grainger in respect of her son Joshua. On 11 June 1999 the Social Security Appeals Tribunal ("the SSAT") affirmed a decision of a delegate of the Secretary that CDA be paid to Mrs Grainger from 10 March 1998. That decision had been affirmed by an authorised review officer ("ARO") on 21 April 1999.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents"). Mr B. Slattery, an advocate with Centrelink, who represented the Secretary at the hearing, provided Mrs Grainger and the Tribunal with a statement of the Secretary's facts and contentions and copies of correspondence between Mr S. Grainger, Mrs Grainger's husband, who represented her at the hearing, and his Federal Member of the House of Representatives, Mr R. Price, mp, and the Chief Executive Officer of Centrelink, Ms S. Vardon, with respect to issues which have arisen for Mr Grainger concerning the number of times Mrs Grainger has been asked to provide her tax file number. The Tribunal also had before it material with respect to difficulties Mr Grainger experienced in trying to ascertain any entitlement he may have to payment in respect of his son Joshua who has a speech problem. Consideration had been given by the Secretary to a payment of compensation for detriment caused by defective administration and the Tribunal also had before it a bundle of material with respect to that issue. Mr Grainger told the Tribunal that "The only reason I'm here is because of mis-administration . . .".
Some of the relevant legislation, sections 957 to 960 inclusive of the Social Security Act 1991 ("the Act") is set out in the documents and the Tribunal will not reproduce it here. The effect of those provisions is set out in paragraph 1 of the reasons for decision of the SSAT as follows:
1.Mrs Grainger lodged a claim for Child Disability Allowance in respect of her child Joshua on 10 March 1999. On 24 March 1999, Centrelink decided that Mrs Grainger was entitled to the Child Disability Allowance, and that the allowance was payable from 10 March 1998 – that date being 12 months prior to the date of claim. In making this decision, Centrelink indicated it was applying Sections 957 to 960 of the Social Security Act 1991 ("the Act"). These sections provide in summary that the child disability allowance is not generally payable prior to the person's provisional commencement day. (Section 957) The provisional commencement day is defined as the day on which the person claims child disability allowance (Section 958). If however, a person is qualified for a child disability allowance, but claims more than 12 months after becoming so qualified, the allowance can become payable up to 12 months prior to the date of claim (Section 960).
. . .
In lodging Mrs Grainger's application for review of the decision of the SSAT with the Tribunal, Mr Grainger advised:
I attended this S Security Tribunal so that I could explain what had happened and they still don't seem to understand that I was prevented from finding out such information about child disability. The questions were asked of the manager but there was a female person every time I rang kept putting me off and when I did attend the office they didn't want to give any details things became very heated. So as not to cause any trouble I had to leave.
Before 1998, Mrs Grainger had been paid additional family allowance payments under the Act through the Department of Veterans' Affairs as Mr Grainger receives a payment from that Department. Mr Slattery advised in the Secretary's statement of facts and contentions that it had been announced in the 1996/1997 Budget that, with effect from 1 January 1998, all Department of Veterans' Affairs' payments for children would be transferred to Centrelink. Mr Grainger explained to the Tribunal that towards the end of December 1997, unbeknown to him, ". . . we were being transferred over from DVA to Social Security". That is borne out by the document indexed at T3 of the documents which was a "Changed to Family Payment" form, advising:
If you (or your partner) receive a service pension or income support supplement from the Department of Veterans' Affairs which includes a child related payment, you need to complete this form so we can correctly assess your entitlement to Family Payment from 1 January 1998.
. . .
Mr Grainger said that he was "pretty upset" as the financial arrangements he had set in place were disrupted. Mr Grainger has been unhappy about his dealings with Centrelink. He said, ". . . They dumped me once before, . . .". He had spoken to Mr S. Brown, then manager of the St Marys Customs Service Centre, Centrelink, late in 1997. He conceded that he ". . . really got hyped and angry about being transferred . . .".
Joshua was born on 22 November 1994. He has a bad speech problem. Mr Grainger said that at the relevant time Joshua was nearly 3½ years old but he still had to point to make himself understood. Mr Grainger had been advised that Joshua would grow out of his condition or otherwise he would be referred for specialist help, which occurred in 1996. He spoke to Mr Brown before Christmas 1997, when a lot of other things were happening in his life, as his mother had recently died. It was agreed that Mr Grainger would see Mr Brown after Christmas. However, every time Mr Grainger tried to contact Mr Brown, Mr Brown's secretary would say that he was "not in" or "not there".
Mr Grainger was frustrated by being asked to again disclose his tax file number when all payments for children were transferred from the Department of Veterans' Affairs to Centrelink, as Centrelink already knew his tax file number and he had also provided it to the Department of Veterans' Affairs. He had stipulated to Mr Brown that the tax file number was known to Centrelink and that he wanted to see him about Joshua. In January 1998 he attended at the Centrelink St Marys office, and he told the Tribunal that:
. . . We say to the girl at the desk. I said I want to see Mr Brown. She went away and come back and said he's not here. I said, look, I know he's here, I rang up before I came in, I spoke to another girl and she said he was in. So if he says he's not in that's garbage. And then she got huffy and said, well, he's not in, he can't see you. And she said, what did you want? And I said, Well I want to see somebody that can help me with these matters, you know, like, not a disability but a speech problem, I won't use disability because that's not what it said, I said he's got problems, I want to see somebody. She said, well you can't see anybody. She pulled the form out, she threw it on the desk, I think it was a family payments form, she gave it to my wife. I think she motioned a security guard over to eject me, so I just left. These things I told at the Social Security hearing that I went to last year and they left it out of their paperwork too. So I am telling you again, so I that I know you are getting it in there, because they have got a habit of leaving things out. I am not here to tell any lies, I am just telling you what happened, that's what happened on that day, after that.
Mr Grainger said that he did not know what payment Mrs Grainger may be entitled to with respect to Joshua, but he wanted to make enquiries as to whether there was entitlement in light of Joshua's speech difficulty.
Mr Grainger said that his wife had received a letter advising her that entitlement to family payment would cease unless her tax file number was provided to Centrelink. The Tribunal had before it correspondence from Ms Vardon to Mr Price, dated 22 June 1998, in part:
. . .
I am sorry that your constituent is concerned about the number of times Centrelink appears to be asking for his Tax File Number. While previously Centrelink frequently asked for Tax File Numbers, this practice ceased some time ago. Now, if Centrelink has a customer's Tax File Number recorded, it does not have to be provided again. Although forms may ask customers for their Tax File Number, there is a section on the forms which asks customers whether they have previously provided Centrelink with their Tax File Number. As you would appreciate, these forms are designed for new customers as well as continuing customers.
Your letter mentions a suggestion made by your constituent that Federal Government departments find out from each other a person's Tax File Number. While Centrelink appreciates this suggestion, our fraud control program requires customers to provide us with their Tax File Number. The number they provide is then checked with information held by the Australian Taxation Office to verify the customer's identity. This is a measure specifically introduced to protect both the Commonwealth and the customer from potential fraud.
. . .The material before the Tribunal with respect to whether Mr Grainger should receive compensation for detriment caused by defective administration includes a memorandum by Ms K. Daynes, Team Leader, dated 4 November 1999, which records in part:
. . .
Mr Grainger contacted Centrelink in December 1997 following the transfer of additional Family Allowance payments from Dept of Veterans affairs [sic] to Centrelink. This was due to occur the first payday in January 1998.
Mr Grainger stated that he wanted to speak to the manager but was always stopped by staff. He states that he was not advised by any staff member about Child Disability Allowance (CDA).
Mr Grainger states he was finally able to speak to Stuart Brown in December 1997. Mr Grainger states that he advised Stuart of the following "one of my children has a problem and I want to meet with you to see what payments I am entitled to".
When Mr Grainger and his wife attended St Marys CSC in December 1997, Stuart Brown was not available for them to see him.
Mr Grainger had contacted Roger Prices' [sic] office in December 1997 about this issue. Roger contacted Stuart and arrangements were made for Mr Grainger to attend the office and speak to Stuart. Mr Grainger attended the office in December 1997/Jauary 1998 [sic] to speak to Stuart but he was unavailable. I didn't ask Mr Grainger if he had an appointment but can only assume that he did not as Stuart was unavailable. Mr Grainger stated that he was always cut off from speaking to Stuart and that he also attended the office on another occasion only to be told by staff that he was unavailable. He requested Stuart's telephone number on one visit but the staff would not give it to him. Mr Grainger states that he gave up trying after this.
Mr Grainger is of the opinion that if he had been given the opportunity to speak with Stuart that a claim for CDA would have been issued to him. Mr Grainger acknowledges that he did not inform the staff of Centrelink that Joshua had a disability and that he only referred to it as a problem. At the time of the contact with Centrelink, Mr Grainger states that he thought his son had tongue tied and was unable to speak. He was attending Westmead hospital at the time but Joshua was not receiving any speech therapy. Mr Grainger sought a second medical opinion for Joshua in mid 1998. He advised me that he found out about CDA from a friend and also from the place where he has his car serviced. This was sometime near the end of 1998. He advised his wife that she should investigate if they were entitled to the payment.
. . .
Mr Brown gave oral evidence that he has a recollection of speaking to Mr Grainger on two occasions. He particularly remembered one telephone call because Mr Grainger was the only person who contacted him with respect to the transfer of family payments from the Department of Veterans' Affairs to Centrelink. He has no recollection however of an appointment being made for Mr Grainger to see him. In his statement dated 19 November 1999 Mr Brown advised:
. . .
During the course of the [telephone] conversation Mr Grainger did make reference to extra concerns he had about his child as they were having problems. I asked if he was aware of Child Disability Allowance, but Mr Grainger advised that he did not consider the child had a disability, but that at that time they were unsure what the problem was and it was mentioned only to emphasise the addition [sic] stress he and his wife were under at the time.
. . .It was Mr Grainger's contention that Centrelink would not tell him what he was entitled to and that CDA should be paid to him from January 1997 rather than March 1998 as, if he had been provided with the appropriate forms to complete in January 1998 the payment of CDA would have been backdated from then for 12 months rather than being backdated from March 1999. The Tribunal accepts that Mrs Grainger was with Mr Grainger when he went to Centrelink in January 1998 to try and make contact with Mr Brown.
Mr Grainger put to the Tribunal that, if the girl at the counter at Centrelink had taken just five minutes in January 1998 so that they could show her the papers they had with them with respect to Joshua's assessment, ". . . there wouldn't have been any of this trouble". Having been advised that Mr Brown was unavailable, Mr Grainger told the Tribunal that he had asked to see somebody else. He said, ". . . can I see one of your – all the people sitting at the desk on the side, interview board". Mr Grainger concluded his remarks by advising:
. . .I just can't understand these people honestly, because he sent me on a goose chase the last time, because I wanted to come to the tribunal to get it over and done with, for a claim against mismanagement like. Had I known what they were going to do, just do it at St Marys, I said, don't waste my time. That's what really upset me when I found out all of this and how we still had to come back here to do it all again, it's just wasting people's time. The evidence they gave is just not true as far as I was concerned, and they knew it themselves. At any level it was just branch level and that was it. Had I known that I would have gone somewhere else.
The Tribunal accepts Mr Slattery's contention that the issue with respect to the payment of compensation for detriment caused by defective administration is not an issue the Tribunal can consider. The powers under the Act only provide the Tribunal with jurisdiction to review the decision of the SSAT.
Sections 961, 962 and 963 provide, so far as relevant:
961(1) A person who wants to be granted a child disability allowance must make a proper claim for that allowance.
Note:for proper claim — see section 962 (form) and section 963 (manner of lodgment).
. . .
962 To be a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary.
963. To be a proper claim, a claim must be lodged:
(a)at an office of the Department; or
(b)at a place (whether inside or outside Australia) approved for the purpose by the Secretary; or
(c)with a person (whether inside or outside Australia) approved for the purpose by the Secretary.
The Tribunal is satisfied that some people find it difficult to deal with bureaucracy and it is no easy matter to put in place appropriate safeguards so that the clients of Centrelink are always satisfied they have been heard. Having listened to the evidence, the Tribunal finds that a proper claim form for CDA was not lodged by Mrs Grainger when she attended a Centrelink office at St Marys with Mr Grainger in January 1998 which may have entitled her to payment of CDA in respect of Joshua from an earlier date. It appears from Mr Grainger's evidence that Joshua had already been assessed by Dr M. Glasson, paediatric surgeon, but, if the material from Dr Glasson amongst the documents was the material Mr Grainger was referring to in his evidence, it does not include all the necessary information with respect to qualification for CDA under the Act as required in early 1998.
It is hard for members of the community to know what payments they may be qualified for under the Act. The Tribunal understands that pamphlets and forms with respect to CDA are available through some hospitals, as well as being available at Centrelink offices (see Re Brammer and Secretary, Department of Family and Community Services [2000] AATA 310 (decided 20 April 2000). If there are barriers to communication, the provision of appropriate forms is a difficult matter. However, this Tribunal has no power to make a decision with respect to defective administration. It would be open to a person to write to Centrelink advising of their circumstances and asking for appropriate forms to be provided to them if they do not wish to attend a Centrelink office. Claim forms may be hand delivered or posted to Centrelink once obtained and completed. The Tribunal cannot deem a claim form to have been lodged by Mrs Grainger and she therefore cannot be granted CDA from an earlier date than the date from which she has been paid, as requested by Mr Grainger.
It is for these reasons that the decision under review will be affirmed.
I certify that the seventeen [17] preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs H.E. Hallowes, Senior Member(sgd) Catherine Thomas
Personal AssistantDate of Hearing: 25.08.00
Date of Decision: 18.12.00
Solicitor for the Applicant: NIL — Mr S. Grainger, applicant's husband
Solicitor for the Respondent: Mr B. Slattery, Advocate with Centrelink
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