Hall and Secretary, Department of Social Services (Social services second review)

[2019] AATA 2964

Hall and Secretary, Department of Social Services (Social services second review) [2019] AATA 2964 (30 August 2019)

Division:GENERAL DIVISION

File Number(s):      2018/4819

Re:Tiziana Hall

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:30 August 2019

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – carer allowance – start date of payment – whether applicant taken to have made a claim on the date she contacted the department – no written notice of contact – claim made more than 13 weeks after contact – decision affirmed

LEGISLATION

Social Security (Administration) Act 1999 (Cth) ss 11, 13, 16, 41, 42, Sch 2

REASONS FOR DECISION

Senior Member A Poljak

30 August 2019

1. Ms Tiziana Hall, the applicant, is currently in receipt of carer allowance. The decision under review in these proceedings is a decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (“SSCSD”) on 13 August 2018, which affirmed a decision made by the Department of Human Services (“the Department”) to pay the applicant carer allowance from 29 January 2018 (“decision under review”). The applicant contends that carer allowance should be paid to her from 24 October 2017.

2. The issue to be decided in this matter is whether the applicant can be paid carer allowance prior to 29 January 2018.

   Relevant Legislative Provisions

3. Section 11 of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”) provides that a claim must be made for a social security payment.

4. Section 13 of the Administration Act provides that a person contacting the Department about a social security payment can be deemed to be a claim in certain circumstances. Section 13 provides that a claim for a social security payment can be taken to have been made on the day they contacted the Department, if the person was qualified for the payment on the date of contact and the person is given a written notice acknowledging that the Department was contacted in relation to the making of the claim and a written claim is lodged within 14 days of the date of contact. Subsections 13(2) to 13(3A) of the Administration Act state that the time limit for lodging a claim may be extended up to 13 weeks if the person, or a person they are caring for, had a medical condition and that medical condition prevented them lodging the claim earlier, or there were special circumstances that prevented them lodging the claim earlier.

5. Section 16 of the Administration Act details how a claim is made. It relevantly provides:

   (1)  A person makes a claim for a social security payment or a concession card:

   (a)  by lodging a written claim for the payment or card; or

   (b)  by making the claim in accordance with subsection (7).

   (2)  A written claim for the purpose of subsection (1) for one social security payment or for a concession card must be in accordance with a form approved by the Secretary.

   …

   (4)  A written claim is lodged by being delivered:

   (a)  to a person apparently performing duties at a place approved for the purpose by the Secretary; or

   (b)  to a person approved for the purpose by the Secretary; or

   (c)  in a manner, and to a place, approved for the purpose by the Secretary.

   …

   (7)  A person may make a claim in a manner approved by the Secretary for the purposes of this subsection.

6. Subsection 41(1) of the Administration Act provides that unless another provision of social security law provides otherwise, a social security payment becomes payable to a person on the person’s start date in relation to the social security payment. Section 42 of the Administration Act provides that a person’s start date is worked out in accordance with Schedule 2.

7. Subclause 3(1) of Schedule 2 to the Administration Act provides the general rule for start days. It states:

   (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 date in relation to the payment is the day on which the claim is made.

   Background Facts and Consideration

8. On 24 October 2017, the applicant created an online claim for carer allowance. This claim was never submitted. Also on 24 October 2017, the applicant uploaded a medical report which was completely blank. On 24 January 2018, the carer allowance claim created by the applicant online on 24 October 2017 expired.

9. On 29 January 2018, the applicant created an online claim for carer allowance, which has been taken to have been submitted on that date. On 14 February 2018, the applicant uploaded a medical report. On 30 May 2018, the Department granted the applicant carer allowance with effect from 29 January 2018.

10. While the applicant created an online claim for carer allowance on 24 October 2017, it was unfortunately never submitted. As such the applicant did not make a claim for carer allowance in accordance with subsection 16(1) of the Administration Act on 24 October 2017. As the claim was never actually submitted, the applicant did not lodge a written claim for carer allowance as the claim was not delivered in any of the circumstances described in subsection 16(4) of the Administration Act.

11. It appears from the Department’s electronic files that the applicant contacted the Department on 24 October 2017, regarding a claim for carer allowance. There are no further details available about this contact and the applicant did not receive written acknowledgement from the Department about this contact. In addition, the applicant did not lodge a claim within 13 weeks after the date the Department was contacted, namely by 23 January 2018.

12. The deemed claim provisions found in subsections 13(1) to 13(3A) of the Administration Act are not capable of being applied to the applicant’s circumstances because the Department never gave written notice to the applicant acknowledging that she had contacted the Department in relation to making a claim, and the applicant never lodged a written claim within either 14 days or 13 weeks after this contact date. As the applicant did not file a claim for carer allowance before 23 January 2018, it is not necessary for me to consider where there are any medical conditions or special circumstances which prevented the applicant from lodging the claim earlier.

    Decision

13. The decision under review is affirmed.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 30 August 2019

Date(s) of hearing:	25 March 2019
Applicant:	In person
Solicitors for the Respondent:	Ms E Ulrick, Department of Human Services