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

[2016] AATA 823

Jackson and Secretary, Department of Social Services (Social services second review) [2016] AATA 823 (5 October 2016)

Division	GENERAL DIVISION
File Number	2016/0128
Re	Joan Jackson
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member Britten-Jones
Date	5 October 2016
Date of written reasons	19 October 2016
Place	Adelaide

For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the decision under review.

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Senior Member Britten-Jones

CATCHWORDS

SOCIAL SECURITY - Carer allowance - whether able to backdate

LEGISLATION

Social Security Act 1991(Cth), ss

CASES

Scott v Secretary Department of Social Security [2000] FCA 1241

Milroy v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 488

REASONS FOR DECISION

Senior Member Britten-Jones

19 October 2016

1. At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of oral reasons, the applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish to her a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for decision have been transcribed by DTI Corporation Pty Ltd.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3. The said transcript is annexed hereunto and furnished to the respondent and to the applicant as it is the reason for the Tribunal’s decision.

I certify that the following  paragraphs are a true copy of the reasons for the decision herein of Senior Member Britten-Jones

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Administrative Assistant

Dated 19 October 2016

Date(s) of hearing	5 October 2016
Applicant	In person
Advocate for the Respondent	Ms L Wells
Solicitors for the Respondent	Sparke Helmore Lawyers

EXCTRACT OF TRANSCRIPT PROCEEDINGS

SENIOR MEMBER:  So what I will now do, Ms Jackson, is just read out the reasons for the decision I have made and then I will give you the decision at the end.  This is your application on two matters; your application dated 11 January 2016 was to seek a review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal made on 8 December 2015.  That decision affirmed an earlier decision of an authorised review officer dated 21 September 2015 to deny your claim to have a carer allowance back dated to a date in 1997.  It was on 14 September 1999 that Ms Jackson lodged a claim for carer allowance and for carer payment.  On 27 October 1999, a Centrelink officer made a decision to only grant carer allowance and that was from 14 September 1999 but that was subsequently backdated a day later, on 28 October 1999 when the Centrelink officer decided to allow the payment to commence on 8 July 1999, being the date that Ms Jackson first contacted Centrelink about a carer’s allowance.

Ms Jackson filed her application commencing these proceedings in this tribunal on 11 January 2016.  Her application says that she believes the decision is wrong and that a different decision should have been made.  She says that the information that she provided was not taken into account.  She said that Centrelink provided her with misleading and incorrect information with regard to her pensions and that this caused her financial loss through the tax system, and that this was a case of defective administration by Centrelink.

The relevant legislation with respect to the issue relating to the carer allowance is the Social Security Act 1991 prior to an amendment by which some of the administrative matters in that Act were taken out from that Act and inserted into the Social Security Administration Act 1999. The relevant Act therefore is the Social Security Act 1991 as it was in 1999.

Section 959 of that Act states:

A carer allowance is not payable to a person before person’s provisional commencement day.

Section 960 then says:

A person’s provisional commencement date is the day on which the person claims the carer allowance.

Section 966 states:

A person who wants to be granted a carer allowance, must make a proper claim.

Section 967 of that Act states:

A claim for a carer person must be made in writing in accordance with a form approved by the Secretary.

Section 968 of that Act states:

The proper claim must be lodged at the office of the Department.

On 8 July 1999, Ms Jackson first contacted Centrelink about making a claim for carer allowance and it was on 14 September that she lodged her claim for a carer allowance.  The decision made by the Centrelink officer was on 27 October 1999 that, as I said, the following day a further decision was made which had the effect of back dating the carer allowance to 8 July 1999.

The Social Security Act does make it clear that a person cannot be paid a carer allowance unless a proper claim is actually made, and in that case, Ms Jackson was not entitled to receive a carer allowance before the date that she made the claim, being 14 September 1999, except to note the back dating of that claim to 8 July 1999, being the date that Ms Jackson first contacted Centrelink.

Ms Jackson makes submissions with respect to the application for a review on this matter involving the carer allowance payment.  She says that from earlier 1997 up until late in 2004, she was extremely ill and she asked me to consider the important role that she has as a full-time carer for her son who is disabled and she is not just a Centrelink recipient.  I take that into account and do find that she was looking after her son who was severely disabled and needed her assistance for many years.

Ms Jackson says that she would have completed the application for a disability pension for her son in 1997 and that there would have been information provided regarding her son’s disability and that his disability was permanent.  The effect of Ms Jackson’s argument is that the fact of the disability of her son was known to Centrelink and that therefore Centrelink were obliged to inform her of her rights in 1997 and for her to receive payments earlier than she otherwise did.

Ms Jackson has noted that some principles within Social Security law where the department is not under an obligation to volunteer information, but she says that there is an exception where there has been an approach to Centrelink by the recipient of the potential benefit and she says that that is what happened in her case, namely that she approached Centrelink and that they were under an obligation to inform her of her rights.

In particular, she says that in 1997, Centrelink was under an obligation to inform her of the availability of carer allowance or carer payment and that the granting of the carer allowance in October of 1999 should have been back dated to when she filled in the forms for her son’s disability support person in 1997.

Ms Jackson gave evidence, and I accept, that she regularly approached Centrelink, but she was not given information to make a claim until 1999.  Ms Jackson’s contention is that Centrelink caused her a detriment by defective administration and in particular, by unreasonably failing to give her proper advice that was within Centrelink’s power and knowledge and reasonably capable of being obtained by Centrelink.  She says that she suffered financial loss through the tax system because of this.

Ms Jackson also says that Centrelink confused her with respect to the two payments, carer allowance and carer payments which she says that she was unaware that there was a difference between the two.  Ms Jackson says and there is no reason to dispute, that in 1997 she was extremely ill and under care of medical specialists.  She was suffering from what she described as “a debilitating illness”.  She was very sick between 1997 up until 2004.   She does not have any immediate family in Australia and did not have support to assist her to make the necessary applications that would have resulted in her receiving payments from an earlier date.

The difficulty for Ms Jackson with respect to the argument as to Centrelink’s obligations to provide information is that there is no onus on Centrelink to provide information and in particular, the decision of Scott v Secretary Department of Social Security [2000] FCA 1241 found at paragraph 20:

There was no general common law duty of care to advise the appellants of benefits that might potentially be available under the Act.

There was a further decision of Milroy v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 488 where the tribunal concluded at paragraphs 18 and 19:

The decision of Scott is also of importance.  This was a decision of the Full Court of the Federal Court where the majority upheld the judgment at first instance.

These cases highlight the requirements of Centrelink.  They demonstrate that Centrelink is not responsible for informing any member of the public at large that he or she may be entitled to a Social Security payment; nor did they require Centrelink to correct errors made by a claimant.

It is therefore my finding that Centrelink was not obliged to advise Ms Jackson that she should have applied for a carer allowance, and the onus was on Ms Jackson to lodge her claim.  From her perspective, she did not do that until 14 September 1999, and therefore not in a position to obtain any payments prior to the back dated day of 8 July 1999.

I refer also to the relevant provision in the Social Security Act as it then applied, being section 992G3 that provides:

If a person is given notice of a decision and more than three months after the notice, seeks review of that decision, which is decided in a person’s favour, the date of effect of the favourable decision is the date of request for a review.

In this case, the decision was made on 27 October 1999 in respect to carer allowance and notice was given on that day and then on the following day, 28 October regarding the back dating.  The application for a review was not made within the three month period and indeed, was not made until 10 August 2015.

My finding is that it was a correct decision to grant carer’s allowance and to back date it to 8 July 1999. Consequently, there is no favourable determination as referred to in section 992G of the Social Security Act. In any event, even if there was such a favourable determination, the review was not sought until 10 August 2015, and the effect of section 992G is that the review was sought too late to make any difference.

I turn to the application with respect to the carer payment.  That is the application No.2016/1646.  Ms Jackson lodged her application seeking review on 4 April 2016.  The decision sought to be reviewed by her was a decision of the AAT at first review on 17 February 2016 which affirmed the decision of an authorised review officer dated 14 October 2015.  That decision cancelled the carer payment of Ms Jackson from 4 March 2003. 

It was on 25 March 2015 that Ms Jackson requested there to be a review of the decision to cancel the carer payment from 4 March 2003.  Ms Jackson stated that she had been disadvantaged by the cancellation as she had to pay tax as a result of being on PPS.

On 14 October 2015, there was an internal review carried out by an authorised review officer that found that the carer payment was correctly cancelled from 4 March 2003.  Then on 8 December 2015, the AAT at first review affirmed the decision of the authorised review officer and concluded that Ms Jackson did not ask for a review of the 4 March 2003 decision until 25 March 2015, which was a date significantly longer than the 13 weeks after she was notified of her decision.

Ms Jackson filed her application commencing these proceedings on 4 April 2016 and she asserts in the application that the decision was wrong and I believe that a different decision should be made and I believe the information I provided was not taken into account.

The events of 4 March 2003 were that Ms Jackson contacted Centrelink to request that her carer payment be cancelled and querying the rate of Family Assistance payments.  During that phone call, she advised a Centrelink employee that she was on a carer payment and that she was working 20 hours per week and that her son was studying full-time and that she would like her carer payment cancelled and that she had completed an application form for PPS.

Prior to this phone call, there had been a series of communications both by phone and personal, with Centrelink by Ms Jackson.  There are a series of notes recording these communications.  It must be said generally that Ms Jackson was not able to specifically recall any of those phone and personal conversations, and in those circumstances I find that the notes recorded by Centrelink and part of exhibit 4 which was tendered before the court, accurately record the conversations on the days.  In particular, I refer to a communication on 26 March 2001 when Ms Jackson rang querying the advantages of being on a carer payment as compared to PPS.  She said that at that time she wanted to increase her working hours as she needed more money as she was struggling to survive on her current earnings.

She was advised by the relevant Centrelink officer that carer payment is non-taxable whilst PPS is taxable, and that she would have to contact the ATO to discuss taxation consequences of taking payments from Centrelink.   There was a further conversation on 22 August 2001 when Ms Jackson stated that she had been advised by the Tax Office that she would be better off tax-wise on PPS, rather than a carer payment and that she wanted confirmation of this.  The Centrelink officer on that day advised that they were unable to give advice on tax matters, but could only confirm that the rate of the pension would be the same whether she was on the carer payment or PPS.

It was noted that the customer was going around in circles regarding this, and it was clear from all of these notes and indeed much of the evidence given by Ms Jackson, that she indeed was very confused.  She, of course, does not dispute that she was confused and lays the blame at Centrelink.

There was a further communication on 3 October 2002.  The customer or Ms Jackson had come in to discuss if it was worth her taking more work hours and changing to PPS.  It was noted that at that time Ms Jackson was currently receiving carer payment and she was considering accepting more hours of work and therefore there was a question as to whether or not the carer payment should be cancelled.  The note on 3 October 2002 is that - in accordance with the instructions from Ms Jackson - the carer payment was to be cancelled.  A few days later on 8 October 2002 the note was not to cancel the carer payment and Ms Jackson told the Centrelink employee that she, in fact, would not be working more than the 20 hour limited.  She had originally thought that she would be able to do the extra hours but she found it too demanding.   Ms Jackson stated that she completed a form for PPS but she did not want to apply for PPS and she wants to remain on carer payments.

A further conversation on 25 February 2003 when Ms Jackson phoned regarding her son’s entitlement to assistance with respect to a training course that related to cooking lessons.  It was on 4 March 2003 that the Centrelink records show that the carer payment was, in fact, cancelled and the note from Centrelink is that Ms Jackson was in receipt of carer payment for her son and that she advised that she is working 20 hours per week and that her son is now studying full-time and that she would like her carer payment cancelled, and that she had completed a claim for PPS.

Ms Jackson gave evidence that she would not have said that her son was studying full-time or at least in a way that represented full-time.  She said that she possibly used the expression “full-time” but she said that her son is not capable of doing that and had never carried training for anything greater than about three hours per day.  Nevertheless, it is my finding that the statement to the Centrelink officer was that her son was studying full-time and the instruction given on that day was for her carer payment to be cancelled and that is in fact what would happen.

Later in 2003, on 31 July, Ms Jackson had phoned and advised that she did not wish to proceed with a new application for carer payments and that she wished to remain on PPS.  On 17 November 2003, Ms Jackson attended an appointment and asked for a review of the decision to pay her carer payments and not PPS.  She claimed at that time, as she still does, that she had been misled by both the ATO and the Centrelink staff about the benefit of being paid carer payments instead of PPS.

Then on 19 November 2003, it was recorded that Ms Jackson wanted a review of the decision.  Once again, she complained that she had been misled by Centrelink and the Tax Office about the benefit of being paid a carer payment above PPS.   Then on 4 December 2003, there is a comment made in the internal record that this is an interesting matter where, despite having moved from a taxable payment, PPS to a non-taxable payment namely a carer allowance, Ms Jackson appears to have lost out financially due to not being eligible for a pensioner tax offset through the Tax Office.  It is noted that she alleges that both the Tax Office and Centrelink advised her to move to carer payment.

Ms Jackson said generally in response to the raising of some of these matters, she asked the rhetorical question as to why she would ask for a carer payment to be cancelled when this was not a taxable income.  She said that her son was not studying full-time and never has been, that he has an intellectual disability and was not in a position to study full-time.  Ms Jackson also said that she was exhausted with Centrelink and in particular, never being able to get the correct information from them.  She said in terms of asking for a review in 2006 when there was a letter confirming the carer payments that had been made to her,  she said that she was continually being confused about the pensions in 2006 and prior and she did not have a computer at that time, and that she did not even know how to use one.  Ms Jackson contended that Centrelink do have a duty of care to inform recipients of entitlements, particularly when the person approaches Centrelink face-to-face.  In that regard I refer to the earlier decisions regarding the extent or lack of extent of any duty of care that Centrelink has.

It is the case that as at 1997 Ms Jackson was ill and was seeing a specialist.  She had three other children in addition to her son who was on the disability support pension.  In 1997, Ms Jackson said that she made no application for any payment because she was unaware that she was able to and was not given information.  In 1999 she said that she was not aware that there was something more than the carer allowance. 

She maintains that at all times she did not distinguish between a carer allowance and a carer payment and that she had numerous visits to Centrelink, and was never informed in a way that enabled her to make the appropriate decision.  It is not in dispute that in 2006 Ms Jackson went overseas for three years and she came back in 2009.  At that time her son reapplied for disability support pension and there was no issue, at that time, with respect to the carer payment and carer allowance, that was provided to Ms Jackson from that time forward.  Ms Jackson distinguishes the approach of Centrelink and the information that was provided in 2009 to the lack of information that was provided in the 1997 and 1999 and even at the time that she cancelled the payment in 2003.

She explains not having taken any action for such a long period of time because she came back from overseas in 2009 and went into three rental properties and in effect had to start again.  She was trying to settle her family and look after her son who was on the disability support pension and it was not until 2013 that she became settled.  She had her own health issues with blood pressure.  She got a laptop in 2014 and it was only then that she realised that she could have received a carer payment.

I take into account the difficulties that Ms Jackson has had with respect to dealing with Centrelink over the years, and it is not unusual for parties to be frustrated with respect to dealings with Centrelink.  Nevertheless, I do not find that Centrelink breached any duty they may have to Ms Jackson and in particular, I do not find that they had a duty to provide her with information regarding benefits that she may have been entitled to.

I find that the decision to cancel the carer payment for Ms Jackson from 4 March 2003 was made at the request of Ms Jackson because her son was then studying full-time, or at least that is what she conveyed to the Centrelink officer.  The decision to cancel Ms Jackson’s carer payment from 4 March 2003 was the correct decision.  I find that as Ms Jackson did not seek review of the decision to cancel her carer payment until 25 March 2015, that the time limits set out in the applicable legislation, namely the Administration Act, indeed would again prevent the effect of any favourable determination applying at an earlier date than 25 March 2015.  In any event, I have not made any favourable determination as referred to in section 109 of the Administration Act.

My decision is that the decisions of the AAT first review dated 8 December 2015 and 17 February 2016 are affirmed.  Unfortunately, Ms Jackson that means that your application for review has not been successful, but I appreciate you giving evidence to the tribunal and the way that you did, and I appreciate the submissions that were made on behalf of the Secretary of the Department of Social Services.

Thank you.