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

[2008] AATA 980

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 980

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1929

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHAEL ISRAEL

Applicant

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

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date5 November 2008

PlaceSydney

Decision The Tribunal affirms the decision under review.

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

Ms G Ettinger     
  Senior Member

CATCHWORDS

SOCIAL SECURITY - carer payment and carer allowance - start date - whether payment can be made from a date earlier than the date of claim – decision under review affirmed.

Social Security Act 1991 ss 1217, 1218C(1), 954(1), 198(5), 7(2)
Social Security (Administration) Act 1999, ss 11, 13, 15, 16, 29, Schedule 2, clause 3

Re Fry and Secretary, Department of Social Security (1990) 20 ALD 709
Scott vSecretary, Department of Social Security (2000) 65 ALD 79

REASONS FOR DECISION

5 November 2008 Ms G Ettinger, Senior Member

INTRODUCTION

1.      Mr Michael Israel has been caring for his wife and receiving carer allowance and carer payment (carer benefits), and/or other social security benefits for some years. It is not disputed that Mrs Mary Israel suffers serious physical and psychological illness, and has been hospitalised on several occasions.  She has also been in receipt of social security benefits at various times. However in terms of this appeal, I am concerned only with arrears of carer allowance and carer payment paid to Mr Israel for the care he gives his wife.

2.      There is no disagreement that the couple travelled overseas on 4 July 2006. Mr Israel’s carer benefits continued for 13 weeks following that date, as appropriate, and because the couple did not return after that period, both carer allowance and carer payment were suspended, and then cancelled.

3.      Mr Israel tried unsuccessfully on his return, to have his carer benefits reinstated before again travelling overseas to be with his wife. When the couple returned to Australia in October 2007 Mr Israel applied again, and was granted carer benefits.

4.      However, I was not able to find that Mr Israel’s carer allowance and carer payment could be backdated to 3 April 2007. Accordingly his application to this Tribunal is unsuccessful. My reasons follow.

ISSUES

5.      The issue I have to decide is whether Mr Israel is entitled to payment of arrears of  carer allowance and carer payment from 3 April 2007 (to 3 October 2007). 

THE LEGISLATION

6.      The relevant legislation is the Social Security Act 1991 (the Act), and the Social Security (Administration) Act 1999 (the Administration Act).  Also relevant is the Guide to Social Security Law (the Guide). The Guide is of assistance to decision makers and is not binding on the Tribunal, but of assistance as just that, a guide.

7. Section 198 of the Act deals with qualification requirements for carer benefits, and specifies amongst other things, that the person applying for the benefit must personally provide constant care for the receiver of the care.

8.      The Administration Act specifies that a person who wants to be granted a social security payment has to make a claim for the payment (sections 11, 16). Section 13 of the Administration Act deals with a deemed claim. Section 29 of the Administration Act specifies that as a general rule, the person making the claim must be an Australian resident, and must be in Australia. It also says that you start getting paid from the day when you make the claim (Schedule 2, clause 3).

CONSIDERATION OF THE FACTS AND THE LAW

9. As stated above, Mr Israel has been caring for his wife, and receiving carer allowance and carer payment for some years. There is no disagreement that the couple travelled overseas on 4 July 2006. Mr Israel’s carer benefits continued for 13 weeks after that date, as appropriate, (sections 956 and 198AB of the Act), and because the couple did not return within the 13 week period, both carer allowance and carer payment were suspended on 3 October 2006, and then cancelled.

10.     The notifications for the cancellation of carer allowance and carer payment were given to Mr Israel some weeks apart, and after I queried the reason for that at the hearing, Centrelink wrote to the Tribunal and to Mr Israel clarifying the situation. Centrelink said in its letter dated 14 October 2008:

“The correct date of cancellation applicable to Mr Israel’s carer payment and carer allowance should not be different. … An investigation into Mr Israel’s record shows that coding with respect to carer payment which occurred on his computer record was inaccurate. … The result of this bares (sic) no practical effect on Mr Israel’s entitlement.”

11.     Mr Israel wrote in reply with his comments after he had received a copy of Ms Garcia’s letter to the Tribunal telling me about the error discussed above.

12.     I am satisfied that notwithstanding the reported error in coding, Mr Israel’s carer allowance and carer payment were both correctly cancelled pursuant to the legislation with effect on and from 3 October 2006, 13 weeks after the couple had departed Australia.

13.     Relevant dates in these proceedings are that Mr Israel, having left Australia with his wife on 4 July 2006, returned to Australia alone on 30 December 2006. He told me that he was in communication with Centrelink between his return and 2 April 2007 when he attended at a Centrelink office, and tried unsuccessfully to have his carer benefits reinstated. Centrelink officers told Mr Israel that the benefits could not reinstated, but that he needed to make a new application. However he says that as he was busy with arrangements for his departure overseas the next day, he did not  make the application as suggested.

14. Mr Israel left Australia on or about 3 April 2007, and travelled overseas to be with his wife. Mr Israel said that he made an application for carer allowance and carer benefit by facsimile from the Australian Embassy in Paris on 18 April 2007, as soon as his wife was well enough to travel. That was rejected on the basis that he was not in Australia when he made the application as required by section 29 of the Administration Act; further that Mrs Israel, the care receiver (who is a citizen of the UK), was not at the time in Australia, neither was she an Australian resident receiving continuous care from him (section 954(1)(a) of the Act). Mr Israel’s view was that it did not matter whether the care receiver was with him or on the other side of the planet; she was still his responsibility, and his intention was to apply for the benefit. He said that he thought the Australian Embassy was on Australian soil, and that his application from there should have been accepted as if he had been present in Australia when he made it.

15.     Mr Israel appealed against the decision to refuse him carer benefits made by Centrelink to the Authorised Review Officer who affirmed the decision of the Centrelink delegate that the cancellation of carer allowance and carer payment was correctly made, and that  Mr Israel’s application for those benefits was not made on 3 April 2007 when he attended at a Centrelink office. Mr Israel exercised his rights to appeal to the SSAT which affirmed the original decision to find that Mr Israel was not entitled to payment of carer allowance and carer payment from 3 April 2007.   He then exercised his rights to appeal to this Tribunal.

16.     The couple returned to Australia on 3 October 2007. Mr Israel has since reclaimed carer allowance and carer pension which was at first delayed due to documentation detail required, and has since been awarded those benefits commencing 4 October 2007.  He has accordingly appealed to this Tribunal for payment of arrears of carer benefits from 3 April 2007 (to 3 October 2007). This Tribunal hearing was conducted by telephone from Sydney because Mr Israel is staying in Townsville at present. He told me his wife is in gaol there.

17.     There is a considerable amount of correspondence between Mr Israel and various authorities in the T-documents. Mr Israel also gave oral evidence regarding the difficulties he and his wife have experienced with her health over the years. He told me that she has had crises in regard to her health and been hospitalised and incarcerated in various countries. Mr Israel said that his wife could not return to Australia when he returned in December 2006 because she did not have the appropriate visa. He said that their circumstances were unusual, and were taken into account in connection with the granting of an application for Newstart. 

18.     Mr Israel said that Centrelink should have informed him when he left Australia in July 2006 that the portability conditions had changed, and that he would, accordingly, not have been disadvantaged if he had known when to reapply for carer benefits. He said that he was not told about special benefit which would apply to a family in crisis, and that Centrelink was incompetent. 

19.     I then turned to consider the specific issues in this case.

CANCELLATION OF MR ISRAEL’S CARER PAYMENT AND CARER ALLOWANCE

20.     I note that there is an official printout of Mr and Mrs Israel’s movements into and out of Australia between 2002 and 2007 attached to the Statement of Facts and Contentions of the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs who is the Respondent in these proceedings.

21.     The relevant date in these proceedings is that Mr Israel, having left Australia with his wife on 4 July 2006, returned to Australia alone on 30 December 2006.  His carer benefits were cancelled 13 weeks after the couple’s departure with effect on and from 3 October 2006. I am satisfied that notwithstanding the reported error in coding which has been referred to above, Mr Israel’s carer allowance and carer payment were both correctly cancelled with effect on and from 3 October 2006. 

22.     I am mindful that when Mr Israel previously travelled, the period before which carer benefits were cancelled when a Centrelink customer travelled overseas and did not return, may have been 26 weeks. However I am satisfied that when Centrelink officers are not given specific factual material about clients’ circumstances, there is no general duty imposed on officers to advise clients as to the types of payments they might be entitled to: Re Fry and Secretary, Department of Social Security (1990) 20 ALD 709; Scott vSecretary, Department of Social Security (2000) 65 ALD 79.

WHETHER MR ISRAEL NEEDED TO LODGE A NEW CLAIM AND WHETHER HE LODGED A CLAIM FOR CARER ALLOWANCE AND CARER PAYMENT ON 2 APRIL 2007

23.     I accepted Mr Israel’s oral evidence and the written Centrelink documentation as evidence of the fact the Applicant was in contact with Centrelink from his return to Australia in December 2006 until the day before his departure on or about 3 April 2007.  I accept also that he was very concerned about his wife who was ill, and spent time both in hospital and in gaol overseas.

24.     I am satisfied as noted above that Mr Israel’s carer benefits had been cancelled appropriately after 13 weeks following the couple’s departure from Australia in 2006. I noted that Mr Israel then returned to Australia alone on 30 December 2006. I am satisfied that when Mr Israel attended at a Centrelink office on 2 April 2007, he was attempting to have his carer benefits restored. I prefer Centrelink’s documented version of events which was that he was told he would have to lodge a fresh claim (T21/146). Pursuant to the legislation, and as indicated in the Guide, after Mr Israel’s carer benefits had been cancelled he needed, on his return to Australia, to lodge a fresh application, (The Guide, section 7.1.5.50).

25.     I accept also that Mr Israel was busy on 2 April 2007 when he attended at a Centrelink office seeking to have his carer benefits restored, and did not complete or lodge the required form, and that he departed Australia on the next day, on or about 3 April 2007.  The Administration Act states that the start date for receipt of payments is when a person is granted a Centrelink payment. The grant can only be made if an appropriate application has been made, and the person is so qualified at the date of lodgement of the application. (Section 8.3.1 of the Guide). 

26. I am satisfied that Mr Israel neither lodged a claim on 2 April 2007 at Centrelink, nor that he was qualified for carer benefits on that date because pursuant to section 16 of the Administration Act, he had not made a claim in writing (which he did not deny).

27. I considered whether he had made a deemed claim pursuant to section 13 of the Administration Act, and find that he does not satisfy the conditions for section 13 in that he did not obtain a written acknowledgement form Centrelink that he had lodged a claim, and further did not make a valid claim within 14 days afterwards, or indeed within the next 13 weeks.

28. What he did do, according to him, was make an application for carer allowance and carer benefit by facsimile from the Australian Embassy in Paris on 18 April 2007, as soon as his wife was well enough to travel. I note that was rejected on the basis that Mr Israel was not in Australia when he made the application as required by section 29 of the Administration Act; further that Mrs Israel, the care receiver (who is a citizen of the UK), was not at the time, an Australian resident (section 954(1)(a) of the Act). Mr Israel’s view was that it did not matter whether the care receiver was with him or on the other side of the planet; she was still his responsibility, and his intention was to apply for the benefit. He said that he thought the Australian Embassy was on Australian soil, and that his application from there should have been accepted as if he had been present in Australia when he made it.

29. Unfortunately the legislation and the Guide indicate to me that I cannot accept that Mr Israel made a claim for carer benefits on 2 April or 18 April 2007 (from France, which does not have an international social security agreement with Australia). Section 29 of the Administration Act specifies that a person must be in Australia to lodge a claim. In any case Mrs Israel was not resident in Australia at the time, and Mr Israel was accordingly not qualified for carer benefits at that time. I note further that pursuant to section 198 of the Act qualification for carer benefits requires that the carer be with the care receiver and care personally for her which Mr Israel was not able to do at 2 April 2007, he being in Australia, and Mrs Israel overseas.

30. I noted further the submission of the Respondent that the particular circumstances and exceptions referred to in sections 30A, 31, 31A and 32 of the Administration Act do not apply to Mr Israel, and having considered them, I concur.

CONCLUSIONS

31.     I accept that Mrs Israel suffers physical and psychological health problems, and that her husband, the Applicant in these proceedings receives carer allowance and carer payment, and provides care for her.

32.     Mr and Mrs Israel have travelled abroad several times. On the occasion relevant to this matter, the couple departed Australia on 4 July 2006.  Mr Israel’s carer allowance and carer payment were correctly cancelled as the couple did not return to Australia within the 13 week period after which automatic cancellation takes place. Mr Israel was notified of that cancellation. He is not arguing that it was made incorrectly, only that it should have been suspended and not cancelled.

33.     As noted above, I have decided that as a result of the cancellation of his carer benefits, they could not be reinstated, and Mr Israel needed to make a fresh claim. I have considered whether Mr Israel can be held to have made a claim or deemed claim for carer payments on either 2 April or 18 April 2007, and am not satisfied that he did. In any case, he was not qualified for carer payments over that period because whilst he may have been communicating and providing moral assistance to his wife, during the relevant period Mrs Israel was not resident in Australia, and he was not providing the continuous physical care required by the legislation.

34.     By way of completeness, I note that the Social Security Appeals Tribunal (the SSAT) reviewed the relevant law and sections of the Guide relating to the cancellation decision in paragraphs 20 – 23 of its Reasons for Decision. I do not independently make findings with regard to extension of the portability period for Mr Israel’s carer allowance and carer payment, but I agree in principle with the SSAT findings that even if portability were argued, on the facts provided there, Mr Israel’s portability period could not be extended.

35.     Applying the law and taking into accounts the facts of the case, I am unable to find that Mr Israel was eligible for arrears of payments of carer allowance and carer payment from 3 April 2007 to 3 October 2007.  Accordingly his application is unsuccessful.

DECISION

36.     The Tribunal affirms the decision under review.

I certify that the preceding 36 paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

Signed:  ……...[sgd].......
  Associate

Date of Hearing  13 October 2008 by telephone
  Reserved 22 October 2008
Date of Decision  5 November 2008
The Applicant  Self-represented
Respondent’s Advocate           Ms A Garcia