Hargrove and Secretary, Department of Social Services (Social security) - [2024] ARTA 321

Hargrove and Secretary, Department of Social Services (Social security) [2024] ARTA 321 (9 December 2024)

Applicant: Ms Hargrove

Respondent: Secretary, Department of Social Services

Chief Executive Centrelink

Tribunal Number: 2024/B190550
Tribunal: Member K Hamilton
Place:Brisbane
Date:9 December 2024

Decision:The Tribunal sets aside the decision under review and
in substitution decides that the start date for Ms Hargrove’s carer payment is 9 April 2024.

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Carers Payment – start date – part-time employment – deemed to have lodged at an earlier date – medical condition – reduced work hours – decision under review set aside and substituted with directions

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 201(1A) of the Social Security (Administration) Act 1999.

Statement of Reasons

BACKGROUND

This matter concerns a decision made by Services Australia – Centrelink (Centrelink) to grant Ms Hargrove’s claim for carer payment (CP) from 17 July 2024 and not from an earlier date.
On 22 September 2023, Ms Hargrove lodged a claim for CP in respect of care she provided to her husband. This claim was rejected by Centrelink as Ms Hargrove was, at the time of this claim, working more than 25 hours per week and therefore was considered to be not providing “constant care” for her husband.
On 5 July 2024 Ms Hargrove contacted Centrelink about reclaiming CP. A further claim for CP was lodged on 17 July 2024.
On 17 July 2024 Centrelink decided to grant Ms Hargrove’s claim for CP from 17 July 2024.
Ms Hargrove sought review by a Centrelink authorised review officer (ARO) seeking to be paid CP from an earlier date.
On 1 August 2024, the ARO affirmed the decision.
Ms Hargrove then applied to the Administrative Appeals Tribunal (AAT) for independent review.
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The matter was heard on 26 November 2024. Ms Hargrove participated in the hearing by telephone and gave evidence under affirmation. The Tribunal had regard to relevant documents produced by Centrelink, numbered as pages 1–111. Following the hearing, Ms Hargrove was provided with an opportunity to provide further relevant documents. These were received on 29 November 2024 and numbered by the Tribunal as page A1-A6.

ISSUES

The statutory provisions relevant to this review are contained in the:
·      Social Security Act 1991 (the Act);
·      Social Security (Administration) Act 1999 (the Administration Act); and
·      Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018 (the Determination).
The issue which arises in this case is whether Ms Hargrove can be deemed to have lodged a claim for CP earlier than 17 July 2024, such that she can be paid CP from a date earlier than 17 July 2024?

CONSIDERATION

Section 11 of the Administration Act provides that a person who wants to be granted a social security payment must lodge a claim.
In the ordinary course of events, if a person is qualified and a social security payment is payable at the time of their claim, the start day for their payment will be the day on which their claim is made: clause 3 of Schedule 2 to the Administration Act.
Section 13 of the Administration Act provides for limited exceptions to the general rule that a person’s start date cannot be earlier than the day on which they lodge a claim. This section allows for a claim to be ‘deemed’ to have been made when a person first contacts Centrelink about making a claim, provided the completed claim is lodged within either 14 days or 13 weeks, depending on the person’s circumstances.
Subsection 13(1) of the Administration Act provides that a person can be taken to have made a claim on the date they contact Centrelink if:
·the person is in the class of persons specified under the Determination;
·the person is qualified for the payment on the day of contact; and
·the person subsequently lodges their claim within 14 days of the contact.
Subsection 13(2) of the Administration Act provides that a person can be taken to have made a claim on the date they contact Centrelink if:
·the person is in the class of persons specified under the Determination;
·the person is qualified for the payment on the day of contact;
·the person subsequently lodges their claim more than 14 days, but not more than 13 weeks, after Centrelink is contacted; and
·throughout the period starting on the day on which the Department was contacted and ending on the day on which the person lodged the claim, the person was suffering from a medical condition that had a significant adverse effect on the person’s ability to lodge the claim earlier.
To benefit from either provision, a person must fall within a class of persons specified in the Determination. The classes of persons specified in the Determination include people who are unable to lodge a claim on a contact day because, at any time during the period of 8 weeks prior to the date on which they contact Centrelink, the person is suffering from a temporary incapacity arising from a medical condition.
In considering whether a person’s medical condition had a significant adverse effect on their ability to lodge a claim earlier, the Social Security Guide, a document that sets out government policy to assist decision makers, at 8.1.1.60 states that:
The test for this purpose is whether the condition had a 'significant adverse effect'. This sets a lower standard than the requirement in SS (Admin) Act Schedule 2, that a medical condition must be the 'sole or principal cause' of delay in lodging a claim. A medical condition that creates any real difficulty for the claimant in relation to any action required to lodge a claim may be regarded as meeting the requirement.
Ms Hargrove told the Tribunal that she first applied for CP as she was struggling to care for her husband and keep up her hours at work. She understood why her initial claim had been rejected, due to her working too many hours as at the date of her claim and within 13 weeks.
Ms Hargrove subsequently reduced her work hours, but this occurred outside of the 13 week qualification period. Ms Hargrove said, however, that Centrelink had told her to submit further details of her work hours and that she could then be backpaid to the date her hours had fallen below 25 hours per week.
Centrelink’s records show that Ms Hargrove contacted Centrelink on 2 April 2024 to supply further payslips and request reassessment of her qualification for CP. Ms Hargrove said that on 2 April 2024 she was scheduled to have surgery and so she visited Centrelink to try to sort out her CP claim before going to hospital that same afternoon.
Between 2 April 2024 and the date on which she lodged her further claim for CP, Ms Hargrove had 4 surgeries. This included the surgery on 2 April 2024 to have a shunt inserted and then 3 separate surgeries [for another condition].
Ms Hargrove said that following each surgery she had at least a week of recovery time during which she was unable to work and her mobility and movement was limited. She was on a high dosage of Endone and was unable to drive to get to her local Centrelink office. Ms Hargrove said that she was unable to use online services and always went into a Centrelink office for any dealings.
Ms Hargrove provided medical certificates covering the following periods:
·11-13 March 2024
·15-18 March 2024
·9-13 May 2024
·6-10 June 2024
·25 June to 2 July 2024
Ms Hargrove’s contact on 2 April 2024 is more than 13 weeks before she lodged her claim for CP on 17 July 2024. The next contact recorded by Centrelink is a contact on 5 July 2024 when Ms Hargrove contacted to discuss reassessment of her qualification for CP and lodging a new claim for CP. This contact is within 14 days of the date on which Ms Hargrove lodged her claim for CP.
However, Ms Hargrove told the Tribunal that she had definitely attended Centrelink on at least 1 further occasion between 2 April 2024 and 5 July 2024. Ms Hargrove said that when she spoke to Centrelink on 2 April 2024, they told her that everything would be okay and she should just wait for an outcome. After she had recovered from her first surgery, and having not heard anything further from Centrelink, Ms Hargrove said that she made another appointment and went into the Centrelink office again. Ms Hargrove recalls this as when she arrived, Centrelink told her that she did not have an appointment and could not be seen, however she had been provided with an appointment card confirming the time and date of her appointment which she showed to the Centrelink officer who then arranged for her to be seen.
There does not appear to be any dispute that Ms Hargrove would have been qualified for CP on each of these dates of contact.
I am satisfied that Ms Hargrove was unable to lodge a claim on the date of these contacts because she was, at the relevant period, suffering from a temporary incapacity arising from a medical condition, and therefore falls within the class of persons specified in the Determination. I am also satisfied that Ms Hargrove was, between 2 April 2024 and 17 July 2024, suffering from a medical condition that had a significant adverse effect on her ability to lodge her claim for CP earlier than 17 July 2024.
I accept Ms Hargrove’s evidence that she did contact Centrelink on at least one occasion between 9 April 2024 (one week after her first surgery) and 8 May 2024, the day before her next surgery on 9 May 2024 (for which a medical certificate has been provided). Given Ms Hargrove’s straitened financial situation, and her sense of urgency to resolve her CP claim to alleviate such difficulties, I am satisfied that her contact with Centrelink would most likely have occurred at the start of this period as soon as she had recovered from her first surgery.
I am satisfied on the balance of probabilities that that Ms Hargrove contacted Centrelink on 9 April 2024. As this date is within 13 weeks of her lodging her claim for CP on 17 July 2024, her claim for CP can be deemed to have been lodged on the date of such contact, 9 April 2024, pursuant to subsection 13(2) of the Administration Act.
This means that Ms Hargrove is entitled to be paid arrears of CP from 9 April 2024.

DECISION

The Tribunal sets aside the decision under review and in substitution decides that the start date for Ms Hargrove’s carer payment is 9 April 2024.

Date(s) of hearing:	Tuesday, 26 November 2024
Representative for the Applicant:	Self