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

[2019] AATA 680

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2018/4677
General Division  )

Re: Tanya Hobden
Applicant

And: Secretary, Department of Social Services
Respondent

DIRECTION

TRIBUNAL:  G Hallwood (Member)

DATE OF CORRIGENDUM:            11 June 2019

PLACE:           Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application:

1.To change the text in paragraph [3] of the decision from ‘…that Ms Hobden could be paid carer allowance from 3 November 2018 and no earlier’ to read instead ‘…that Ms Hobden could be paid carer allowance from 3 November 2017 and no earlier.’

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G HALLWOOD
(Member

Hobden and Secretary, Department of Social Services (Social services second review) [2019] AATA 680 (8 April 2019)

Division:GENERAL DIVISION

File Number:2018/4677          

Re:Tanya HOBDEN  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Member G Hallwood

Date:8 April 2019

Place:Adelaide

The decision under review is set aside and substituted with a decision that Ms Hobden’s carer allowance start from 16 June 2017

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Member G Hallwood

Catchwords

SOCIAL SECURITY – Carer Allowance – Date lodged – Deemed date – Payment start date – Mistaken advice – Decision under review is set aside

Legislation

The Social Security Act 1991

The Social Security (Administration) Act 1999

Cases

Goonewardena v Secretary, Department of Social Services (2018) FCA 138

REASONS FOR DECISION

Member G Hallwood

8 April 2019

1. This review is to determine the correct start date for Ms Hobden’s carer allowance. Ms Hobden contends she submitted a claim for both carer payment and carer allowance electronically on 24 July 2017 and, by reason of technical fault on Centrelink’s behalf ,that claim was processed only as a claim for carer payment. The Secretary contends that Ms Hobden did not submit a claim for carer allowance until 10 November 2017.

2. The issues to be determined are:

   (a)When was Ms Hobden’s claim for carer allowance lodged with Centrelink?

   (b)Can the claim be deemed to have been made earlier?

   (c)What is the correct start date for the carer allowance?

3. The application appeals a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) on 23 July 2018 affirming the decision of the Secretary that Ms Hobden could be paid carer allowance from 3 November 2018 and no earlier.

BACKGROUND

1. The facts outlined below are based on documentary evidence provided to the Tribunal including: ‘T’ documents, ‘R’ documents tendered by the respondent, and the oral testimony of Ms Hobden. The respondent also submitted a further submission at the request of the Tribunal entitled: ‘Respondent’s Further Written Submission’ that the applicant was asked to comment on if she wished. She did not comment.

2. I believe Ms Hobden provided an honest account of the facts in this case to the best of her memory and her account aligns closely with Centrelink’s records. Except for the date of claim submission, the facts are largely undisputed in this case.

3. Ms Hobden described a time in early June 2017 when she was receiving Newstart allowance during a period that she was medically unfit for employment.

4. Also in June 2017, Ms Hobden’s father, Mr Peter Hobden, became gravely ill and she decided to seek support from Centrelink so that she could care for him.

5. On a number of occasions between 16 June 2017 and 19 July 2017 Ms Hobden contacted Centrelink making enquiries about carer payment and carer allowance.[1]

   [1] T8, pp40,49,50

6. On 19 July 2017, Ms Hobden phoned Centrelink for assistance with completing her online claim for carer payment and carer allowance.[2]

   [2] T8, p50

7. On 24 July 2017, Ms Hobden attended the Marion office of Centrelink enquiring about her Newstart Allowance (NSA) and reporting that she had previously been advised by a customer service officer to withdraw her claim for carer allowance “as she was already on new start customer requesting to be back dated from June when she originally applied for carer payment”.[3]

   [3] T8, p52

8. On 24 July 2017, Ms Hobden submitted her claim for carer payment in relation to her father.

9. On 26 September 2017, Centrelink granted the carer payment from 16 June 2017.[4]

   [4] T9, p79

10. On 24 October 2017, Ms Hobden called Centrelink advising that the assets test had listed her primary residence as an asset. She also advised Centrelink that “when she lodged her claim she was told that she would ‘automatically’ be assessed for Carer Allowance as a part of the one claim – this has not happened”.[5]

    [5] T8, p58

11. On 24 October 2017, Ms Hobden also attended the Marion office of Centrelink in relation to her carer payments. She requested that the principal home issue be resolved and enquired about backdating.[6]

    [6] T8, p59

12. On 9 November 2017, Ms Hobden attended the Marion Centrelink office requesting the backdating of her carer allowance. Centrelink noted “if not backdated please consider this as Appeal, for [carer allowance]”.[7]

    [7] T8, p60

13. On 10 November 2017, Ms Hobden lodged an online claim for carer allowance[8] together with a letter requesting that it be backdated to 16 June 2017.[9]

    [8] T7, pp36-39

    [9] R2, p1

14. On 13 November 2017, Centrelink granted Ms Hobden carer allowance backdated to 3 November 2017.[10]

    [10] T9, pp89-90

THE LEGISLATION

1. The relevant law is contained in the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

2. Section 11 of the Administration Act requires a person wanting to be provided with a social security payment to make a claim in accordance with Division 1.

Making a claim and a payment’s start date

1. Section 16 of the Administration Act specifies how to make a claim for social security payments including in writing or in a manner approved by the Secretary:

   How to make a claim

   (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.

   (3)  Two or more written claims by the same person may be combined in one claim. Such a claim must be made in accordance with a form approved by the Secretary for the purposes of this subsection.

   (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.

   (5)  Subject to subsection (6), a place or person approved for the purposes of subsection (4) must be a place or person in Australia.

   (6)  The Secretary may approve a place or person outside Australia for the purposes of subsection (4) for the lodgement of:

   (a)  claims made under a scheduled international social security agreement; or

   (b)  claims for AGDRP in relation to a major disaster that occurred outside Australia; or

   (c)   claims for AVTOP.

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

   (8)  The power of the Secretary to make an approval under subsection (7) is not limited by any other provision of this section.

2. Clause 3(1) of sch 2 of the Administration Act provides that a person’s start day for a social security payment is the day on which that claim is made, provided they are qualified for that payment on which that claim is made.

3. Section 12F of the Administration Act states that a claim is not required for carer allowance if the person qualifies for the carer allowance under s 954B of the Act. However, s 954B is limited to people receiving carer payment for caring for a child or children and is therefore inapplicable in this case.

4. In limited circumstances, a claim’s start date may be deemed to have been made on an earlier date of contact with the Department instead of the later date that a claim was formally lodged on.

5. Section 12 of the Administration Act provides for deemed claims in relation to ‘income support payments’, as defined in s 23 of the Act. However, because carer allowance is not included in the definition of an ‘income support payment’ provided by s 23 the Act, this deeming provision is inapplicable to Ms. Hobden’s circumstances.[11] 

   [11]  Goonewardena V Secretary, Department of Social Services [2018] FCA 138, [22] – [24].

6. Section 13 of the Administration Act goes on to provide other particular circumstances in which a claim may have its start deemed to be the earlier date of contact with Department.

7. Section 13 of the Administration Act describes some limited circumstances allowing a social security claim to be paid from the date of contact with the Department.

CONSIDERATION

When was Ms Hobden’s claim for Carer Allowance lodged with Centrelink?

1. Ms Hobden argues that on 24 July 2017 she submitted a claim for both carer payment and carer allowance, and it was only by technical fault of Centrelink that her claim for carer allowance was not processed. The Secretary put to the Tribunal that the claim form submitted by Ms Hobden on 24 July 2017 was for carer payment only. The electronic form on record only contains a claim for carer payment. [12]

   [12] T7, pp29-35

2. The Secretary contends that Ms Hobden’s claim for carer allowance was submitted for the purposes of s 16 of the Administration Act on 10 November 2017.[13]  For the purposes of this contention the Secretary relies on the recorded claim submission date on the relevant claim form.[14]

   Ms. Hobden’s conduct prior to 24 July 2017 and inconsistent statements made to AAT1 and this Tribunal

   [13] T7, pp36-39

   [14] R1, p5

3. I have found that Ms Hobden’s conduct prior to and around 24 July 2017 is consistent with her having made a claim for both carer payment and carer allowance. It is likely that a technical fault resulted in a claim for carer payment only being processed by Centrelink.

4. The Secretary pointed out an inconsistency between previous statements made by Ms Hobden where she sought to explain why she thought her claim for carer allowance was not received by Centrelink on 24 July 2017.

5. The Secretary drew to the attention of the Tribunal a letter dated 10 November 2017 from Ms Hobden to Centrelink stating: [15]

   I have just lodged my claim online for carers allowance…

   I kindly ask that you backdate this claim to start from 16^th June 2017. My carer payment started on this date and I wasn’t aware that carer allowance payments were not included when I lodged my claim for carer payment. I think that I didn’t tick the box to include carer allowance… [emphasis added]

   [15] R2, p1

6. The Secretary also noted that Ms Hobden had informed AAT1 she believed that due to a technical error on her device she originally clicked on the icon to claim carer allowance but must have unclicked it by mistake.[16]

   [16] T2, p8

7. In response, Ms Hobden explained to the Tribunal that she had been encouraged by a Centrelink employee not to say that she believed there was a computer fault at their end, as they may become defensive and reject her claim. She said that the Centrelink employee suggested she say she believed she may have unclicked the claim for carer allowance when she submitted the form on 24 July 2017. Ms Hobden also states this later version in her Application for Review of Decision dated 20 August 2018.

8. In answer to the question “Did you know the AAT was an independent party?” Ms Hobden answered that she did and that she gave false evidence to the Tribunal as well on the basis of what the Centrelink employee told her to do in order to have her claim backdated.

9. When the Secretary put to Ms Hobden that the reason she told the AAT1 [that not claiming carer allowance was a result of her error] was because it was consistent with her understanding of what had occurred, she replied “Yes, that is what I was told to say by the man”.

10. In oral evidence Ms Hobden consistently indicated that she was confident that she had ticked the box for carer allowance on the online form.

11. In a Centrelink contact record of 19 July 2017 it is noted that Ms Hobden phoned Centrelink for assistance with completing her online claim for carer payment and carer allowance.[17] On the basis of the phone conversation Centrelink marked her file acknowledging her father met the residency requirement so that her claim could be submitted. As this phone call is a few days before the lodgement of Ms Hobden’s online claim it provides clarity of her intent to lodge a claim, rather than indicating what was actually lodged. 

    [17] T8, p50

12. In oral evidence as well as in her written submission Ms Hobden stated that she attended Centrelink after she had lodged her claim form on 24 July 2017.[18] Ms Hobden stated that she explained why she had withdrawn, on the advice of a Centrelink employee, the claim that had been lodged in June 2017. Ms Hobden said the Centrelink employee made a note on the file which she believes eventually led to her carer payment being backdated to 16 June 2017. Ms Hobden stated that she also believed her carer allowance was also to be backdated.

    [18] T1, p5

13. A Centrelink contact record of 24 July 2017  when Ms Hobden attended Centrelink Marion in person notes that Ms Hobden enquired whether her carer allowance and carer payment could be backdated as she had been advised to withdraw her carer allowance because she was already in receipt of NSA. [19] This record by Centrelink appears to corroborate Ms Hobden’s recollection of the content of her claim.

    [19] T8, p52

    Ms Hobden’s conduct after 24 July 2017

14. Similar to her conduct prior to 24 July 2017, I have found that Ms Hobden’s conduct after that date is consistent with, and supports, her evidence that she submitted a claim for both carer payment and carer allowance on 24 July 2017.  

15. When Ms Hobden’s claim was granted on 26 September 2017 it was only for carer payment.[20] Ms Hobden stated that when she first received the allowance in her bank account she thought the payment was less than she had calculated. She said that after several unsuccessful attempts to call Centrelink by phone she eventually attended the Marion branch.

    [20] T9, p79-81

16. On 24 October 2017, according to Ms Hobden, a Centrelink employee explained to her that the reason her payment was lower than she had expected was because her home was listed as an asset, not owner occupied, and that she was not being paid carer allowance. Ms Hobden stated that the incorrect listing of her home was fixed on the spot by the employee, which resulted in a small back pay.

17. Ms Hobden said that the employee indicated that some changes to the Centrelink computer system had probably caused both her home being listed as an asset and her carer allowance being unchecked. He could not fix the carer allowance issue from his computer. Up until she received this advice Ms Hobden consistently asserted a belief that carer payment and carer allowance were claimed on the form she had completed and that carer allowance would be automatic if carer payment were approved.

18. Ms Hobden told the Tribunal that the Centrelink employee told her to complete a new claim form for carer allowance, provide a brief polite letter explaining that she required it to be backdated to June 2017, and to state that the cause was forgetting to tick the carer payment box. She said she was told by this employee that it was better to say it was her fault than blame the Centrelink computer.

19. Ms Hobden’s evidence is in part supported by the Centrelink contact records of 24 October 2017 which note that she was being assessed under the asset test on her primary residence and that she had enquired about her carer allowance. [21]

    [21] T8, p58 and T8 p59

20. Actions beyond 24 October 2017 are also consistent with what Ms Hobden reported she was told to do and say by the Centrelink employee in order to facilitate back pay of her carer allowance on that day.

21. I believe Ms Hobden’s assertion that she changed her story as a result of the recommendation of a Centrelink employee on 24 October 2017. This change in story has made it difficult for this Tribunal, and I suspect for others, to accept her credibility in this matter.

22. However, based on the match between Centrelink’s records and Ms Hobden’s description of events as they unfolded I accept Ms Hobden’s evidence that she completed the form correctly and claimed both carer payment and carer allowance on 24 July 2017.

23. I accept that a Centrelink employee on 24 October 2017 explained that a computer error treated Ms Hobden’s house as an asset, and also neglected to record Ms Hobden’s claim for carer allowance.

24. I find, on balance, that Ms Hobden did lodge a claim for both carer payment and carer allowance, for the purposes of s 16 of the Administration Act, and that technical or human error by Centrelink at the time in July 2017 resulted in only her carer payment being accepted.

Can the claim be deemed to have been made earlier?

1. The Secretary argued that none of the circumstances set out in s 13 of the Administration Act, which allow for a claim to have a deemed start date earlier that its date of formal lodgement, apply to Ms Hobden’s circumstances. However, because I have found that Ms Hobden’s claim for carer allowance was made at the same time as her claim for carer payment, 24 July 2017, it is not necessary to consider the deeming provisions of the Administration Act.

What is the correct start date for the carer allowance?

1. As per s 3 of the Administration Act, the start date for a payment is the day on which the person makes a claim for payment, provided the person is qualified for such on that date. As I have found that Ms Hobden’s claim for carer allowance was on the same day as her claim for carer payment, if Ms Hobden qualifies for carer allowance her carer allowance should start from 16 June 2017, the day on which her carer payment started.

2. Where the carer and the disabled adult do not share a home the carer will qualify for carer allowance if the carer satisfies the criteria in section 954A of the Act. The relevant tests in section 594A are:

   ·     Is the adult a disabled adult?

   ·     Is the disabled adult a family member of the carer?

   ·     Are the disabled adult and the carer Australian residents?

   ·     Has the disabled adult been assessed and rated under the Adult Disability Assessment Tool and achieved an appropriate score?

   ·     Does the disabled adult receive care and attention that meets the requirements of ss945A(2)?

   ·     Is the carers work in providing the care and attention at award wages or the relevant minimum age?

   ·     Does the carer satisfy the carer allowance income test under s957A?

3. Mr Peter Hobden, Ms Hobden’s father, was found by Centrelink to meet the definition of disabled adult so that carer payments could be paid.  In order to qualify for carer payment both Mr Hobden and Ms Hobden were also found to be Australian citizens.

4. A Centrelink internal action record dated 26 September 2017 indicates that the carer payment was granted and that Mr Hobden had been assessed and rated under the Adult Disability Assessment Tool (ADAT) as requiring constant care.[22]

   [22] T8, p57

5. In oral evidence Ms Hobden indicated that she provided care to Mr Hobden at his home on a daily basis during the period and the care was special care related to bodily functions and sustaining Mr Hobden’s life. Ms Hobden’s application for carer allowance submitted on 10 November 2017 indicated that she provided more than 80 hours of care to her father and that she had been providing “personal care and attention to him from 16 June 2017 for 7 days a week”. [23]

   [23] T7, pp37-38

1. Ms Hobden gave evidence that she received no income for caring for her father apart from the income she received from Centrelink, in fact she received no income at all from work from 16 June 2017 and 3 November 2017 (the date from when her carer allowance was granted).

2. For the above reasons I find that Ms Hobden qualified for carer allowance during the relevant period.

DECISION

1. For the above reasons the Tribunal sets aside the decision under review and substitutes a decision that Ms Hobden’s carer allowance start from 16 June 2017.

I certify that the preceding 59 paragraphs are a true copy of the reasons for the decision herein of Member G Hallwood.

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Administrative Assistant Legal

Dated: 8 April 2019

Date of hearing:

Date of decision: 

12 February 2019

8 April 2019

Applicant:

Ms T Hobden

Advocate for the Respondent:

Mr J Stewart

Solicitors for the Respondent:

Sparke Helmore

Respondent:      Department of Social Services