Jack Anthony Jones aka Robert Andre Bolding and Secretary, Department of Social Services
[2015] AATA 362
•27 May 2015
[2015] AATA 362
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/4216
Re
Jack Anthony Jones aka Robert Andre Bolding
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member
Date 27 May 2015 Place Sydney The decision of the Social Security Appeals Tribunal dated 23 July 2014 is set aside, and in substitution, the Tribunal finds that Mr Jack Jones’ Carer Payment was cancelled from 11 December 2013. The Tribunal does not have jurisdiction to review the cancellation of Mr Jones’ Carer Allowance.
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Ms G Ettinger, Senior Member
CATCHWORDS
SOCIAL SECURITY – carer payment – carer allowance – whether temporary cessation in caring for Applicant’s mother during period of respite – Tribunal finds that Mr Jones ceased caring for his mother permanently on 11 December 2013 – Tribunal does not have jurisdiction to review cancellation of Applicant’s carer allowance – decision under review set aside and substituted.
PRACTICE AND PROCEDURE – carer allowance – whether Tribunal has jurisdiction to review decision of Respondent cancelling carer allowance not appealed from primary decision maker – Tribunal has no jurisdiction.
LEGISLATION
Social Security Act 1991 ss 198, 198 AA, 198AC
Social Security (Administration) Act 1999 ss 179 - 182
CASES
Prodan and Secretary, Department of Family and Community Services [2002] AATA 1134
SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISIONMs G Ettinger, Senior Member
27 May 2015
SUMMARY
The decision for review before the Tribunal was the decision of the Social Security Appeals Tribunal (SSAT), dated 23 July 2014. The SSAT set aside the decision of the Department of Social Services (the Department), to cancel Mr Jack Jones’ Carer Payment from 13 December 2013, and substituted a new decision to cancel Carer Payment from 20 December 2013. Mr Jones is also known as Robert Andrew Bolding.
Mr Jones appealed the decision of the SSAT to this Tribunal. The parties agreed that the matter should be decided on the papers. Accordingly, I issued a direction, and gave time for the parties to file any further documents to support their cases. Before commencing to make my decision, I had before me, the original section 37 documents (T-documents), and the supplementary T-documents, as well as further documents provided by both parties. I have taken all those, and of course the relevant legislation and case law into account in coming to a decision.
By way of background, I note that Mr Jones had been caring for his mother, Mrs Roslyn Bolding, and was receiving Carer Payment and Carer Allowance from 15 April 2013. From that date until 10 December 2013, Mr Jones lived with his parents. On that latter date, there was an incident of domestic violence in the home, and Mr Jones was removed from the home. The following day, 11 December 2013, Mr Jones’ father, Mr Bolding, took out an Apprehended Violence Order (AVO), which meant Mr Jones could not enter the home.
Also on 11 December 2013, Mrs Bolding was admitted to hospital for medical reasons.
On 13 December 2013 the Department suspended Mr Jones' Carer Payment and Carer Allowance, which was subsequently cancelled from 17 December 2013. Then on 20 December 2013, Mr Jones made a claim for Newstart Allowance, which was granted with effect from 13 December 2013.
On 19 December 2013 Mrs Bolding was transferred from hospital to respite care. She returned home on 31 December 2013. However the AVO continued to prevent Mr Jones from entering the premises or visiting his mother when his father was present.
On 30 December 2013, Mr Jones requested a review of the decisions to cancel his Carer Payment and Carer Allowance. On 13 January 2014 Mr Jones advised the Department that he had moved from one city to another on the North Coast of NSW.
The Authorised Review Officer (ARO) decided to affirm the cancellation of Carer Payment on 11 April 2014. However, the ARO did not review the cancellation of Carer Allowance. Mr Jones then applied to the SSAT for a review of the ARO’s decision to affirm the cancellation of Carer Payment.
On 23 July 2014, the SSAT set aside the decision of the ARO, and substituted a new decision that Mr Jones' Carer Payment should be cancelled from 20 December 2013. The SSAT did not review the cancellation of Carer Allowance. Mr Jones then applied to this Tribunal for review of the SSAT decision.
ISSUES BEFORE THE TRIBUNAL
The issue before the Tribunal is to determine the correct date of cancellation of Mr Jones' Carer Payment. This depends on whether Mr Jones satisfied sections 198, 198AA and 198AC of the Social Security Act 1991. In particular:
·Whether Mr Jones was participating in the care of Mrs Bolding in hospital (section 198AA(1)(a)(i));
·Whether it was reasonable to assume that, if the hospitalised person (Mrs Bolding) were not in hospital, the carer (Mr Jones) would qualify for Carer Payment for the hospitalised person (section 198AA(1)(b)(i));
·Whether Mr Jones had a temporary cessation of care of his mother, as opposed to a permanent cessation of care (section 198AC(1));
·Whether the Tribunal has jurisdiction to review the cancellation of Mr Jones' Carer Allowance which was neither reviewed by the ARO, nor by the SSAT.
RELEVANT LEGISLATION
The relevant legislation in this matter is the Social Security Act 1991, and the Social Security (Administration) Act 1999.
The correct date of cancellation of Mr Jones’ Carer Payment
In order to decide the correct date of cancellation of Mr Jones’ Carer Payment, it is necessary to consider the application of sections 198AA(1)(a)(i) and 198AA(1)(b)(i) and 198AC(1) of the Act. The consideration of Mr Jones’ qualification for Carer Payment includes a consideration of:
·whether he was participating in the care of Mrs Bolding while she was in hospital from 11 December to 19 December 2013 (section 198AA(1)(a)(i));
·whether he was participating in the care of Mrs Bolding from19 December to 31 December 2013 when she was in respite care;
·whether he was participating in the care of Mrs Bolding after 31 December 2013 when she returned to her home; and
·whether it would be reasonable to assume that if Mrs Bolding was not in hospital, Mr Jones would have qualified for Carer Payment (section 198AA(1)(b)(i)), and whether he had a temporary or permanent cessation of care of his mother (section 198AC(1).
Hospitalisation: 11 December 2013 - 19 December 2013
For the period 11 December to 19 December 2013, when Mrs Bolding was in hospital, Mr Jones remained qualified to receive carer payment, if the evidence were to indicate that he was participating in the care of his mother in hospital. I have noted that because of the AVO in place at the time, he could not be present in the hospital when his father was there. However, he told the SSAT that he continued to visit his mother in hospital, which the SSAT stated, it accepted.
In its Statement of Facts and Contentions, the Respondent stated that there was no evidence Mr Jones provided additional care to his mother while she was in hospital. The Respondent pointed out that the AVO prevented Mr Jones from attending when his father was present. I had no evidence from Mr Jones in that regard.
I find from what evidence there is before me that because of the AVO, it is likely that Mr Jones was only able to visit his mother occasionally while she was in hospital from 11 – 19 December 2013. There is no evidence before me to indicate that he provided her with care during that period.
Respite care: 20 December 2013 – 31 December 2013
I then considered the following period when Mrs Bolding was in respite care from 20 – 31 December 2013. The same situation with the AVO prevailed in that period, excluding Mr Jones from attending to visit his mother when his father was present. The Respondent provided information that Mr Jones visited his mother three times while she was in respite care, that is, two visits on 20 December 2013, and one visit on 31 December 2013, the day she left for home under the ‘enduring guardian’ care of her husband. The Respondent submitted that there was no evidence that Mr Jones was participating in the care of his mother, and noted that the available evidence suggested he was not.
The SSAT noted that respite care is by definition temporary, and that under section 198AC of the Act, a requirement for continued receipt of carer payment is that cessation of care is temporary. The SSAT noted that it was during this time that Mr Jones’ guardianship of his mother was revoked, and that he could not see her.
Mr Jones claimed Newstart Allowance on 20 December 2013, the day Mrs Bolding went into respite care. The SSAT noted that although Mr Jones had claimed Newstart Allowance from that date, and it was granted from 13 December 2013, he indicated that this did not mean he no longer regarded himself as his mother’s carer.
However, the SSAT found on balance that Mr Jones’ caring role had ceased on a permanent rather than temporary basis from 20 December 2013.
I am satisfied that Mr Jones, in being provided with Newstart Allowance from 13 December 2013, was no longer caring for his mother, and noted the finding of the SSAT which I accept, that his guardianship of his mother was revoked while she was in respite care.
Mrs Bolding returns home: 31 December 2013
Mrs Bolding returned home from respite care on 31 December 2013. As Mr Jones was not permitted to enter the family home, and his legal authority had been withdrawn, he was not able to care for his mother at their home.
The SSAT noted that Mr Jones accepted he was no longer his mother’s carer from 31 December 2013.
Whether it would be reasonable to assume that if Mrs Bolding was not in hospital, Mr Jones would have qualified for Carer Payment (section 198AA(1)(b)(i)), and whether he had a temporary or permanent cessation of care of his mother (section 198AC(1)
The Respondent submitted that it was not reasonable to assume that if Mrs Bolding had not been hospitalised, Mr Jones would have qualified for Carer Payment for her. The Respondent submitted that even if Mrs Bolding had not been hospitalised on 11 December 2013, Mr Jones would not have been qualified for Carer Payment for her from that date because he ceased providing constant care for her from that date.
Mr Jones was prevented from entering the home because of the terms of the AVO entered into on 11 December 2013, and pursuant to section 198AA(1)(b)(i), would not have been able to provide the care for his mother, and hence would no longer have qualified for Carer Payment from 11 December 2013.
In his Statement of Facts and Contentions, the Respondent referred to file notes recorded by the Department during December 2013, indicating that Mr Jones was not permitted to enter the family home, and that he was not providing care for his parents. I have not reproduced the file notes here, and note that they are in the supplementary T-documents at ST/154, ST23/156 and ST26/159. Relevantly, at ST21/154, dated 12 December 2013, the Departmental officer recorded that an AVO preventing Mr Jones from entering his parents’ house was current, and that, Jack is not the carer, and does not provide the relevant care for his parents.
I accepted the Respondent’s submission that Mr Jones was prevented from entering the family home because of the terms of the AVO entered into on 11 December 2013, and that pursuant to section 198AA(1)(b)(i), would not have been able to provide the care for his mother, and hence would no longer have qualified for Carer Payment from 11 December 2013. I accept the Respondent’s submission that it was not reasonable to assume that if Mrs Bolding had not been hospitalised, given the terms of the AVO, Mr Jones would have qualified for Carer Payment for her.
I am satisfied therefore that Mr Jones had a permanent cessation of care for his mother on 11 December 2013. I am satisfied, (whilst noting the 63 day period contemplated in section 198AA of the Act), on the basis of the AVO dated 11 December 2013 which prevented Mr Jones from entering the family home, and was in place during Mrs Bolding’s hospitalisation, respite care period, and on her return home on 31 December 2013.
I have noted that Mr Jones claimed Newstart Allowance on 20 December 2013, (granted from 13 December 2013), that he moved from one city to live in another on the North Coast of NSW in January 2014, and am satisfied from the evidence that Mr Jones’ guardianship of his mother was legally revoked from 27 February 2014. I have noted also from the SSAT decision that Mr Jones agreed he was no longer his mother’s carer from 31 December 2013.
Whether the Tribunal has jurisdiction to review the cancellation of Mr Jones’ Carer Allowance
This Tribunal can only review decisions on appeal from those of other designated bodies such as the SSAT. In this case, the powers of review are in sections 179 – 182 of the Administration Act.
I am mindful that the original decision maker cancelled Mr Jones’ Carer Payment and Carer Allowance, but that neither the ARO nor the SSAT reviewed the cancellation of Carer Allowance. Accordingly the jurisdiction of this Tribunal is not enlivened. The Tribunal in the case of Prodan and Secretary, Department of Family and Community Services [2002] AATA 1134 at [8] – [9] provided a clear explanation of the required process. The relevant paragraphs follow:
[8] Part Four of the Social Security (Administration) Act 1999 sets out a review process to be followed by an applicant who disputes a Centrelink decision in relation to the payment of a benefit. The first step is to seek an internal review of the decision by the Secretary: s 129. A decision on the objection is then made by the Secretary or by an Authorised Review Officer: s 135. If the applicant disagrees with that decision, he or she may then approach the SSAT: s 142. If the applicant is dissatisfied with the SSAT decision, he or she may then – and only then – apply to the Administrative Appeals Tribunal: s 179. The Tribunal may not intervene at some earlier point and take over the review before the appeal process before the SSAT has been completed. That much is clear from s181, which says:
“The AAT may only review a decision that has been reviewed by the SSAT.”
[9] It does not matter whether the presiding member of the Tribunal has sympathy for the applicant, or believes the applicant has a good case. The Tribunal (and the applicant and respondent) must follow the process set out in the Social Security (Administration) Act 1999. Since the SSAT had not reached a decision when the application to the Tribunal was filed, the Tribunal has no jurisdiction or power to deal with the case, regardless of its merits. That is the law.
This Tribunal has no jurisdiction to review the application for Carer Allowance.
DECISION
The decision of the Social Security Appeals Tribunal dated 23 July 2014 is set aside, and in substitution, the Tribunal finds that Mr Jack Jones’ Carer Payment was cancelled from 11 December 2013. The Tribunal does not have jurisdiction to review the cancellation of Mr Jones’ Carer Allowance.
I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member ...........................[sgd].............................................
Associate
27 May 2015
Hearing on the Papers 26 March 2015 Applicant Mr J Jones Solicitors for the Respondent Department of Human Services
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