JOSEPHINE FRANCISCHELLI and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 278

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 278

ADMINISTRATIVE APPEALS TRIBUNAL      )

)         No. 2008/5944

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		JOSEPHINE FRANCISCHELLI

Applicant

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

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member

Date24 April 2009

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Senior Member

SOCIAL SECURITY – 2008 carer bonus - eligibility - late lodgement of application 

Social Security Act 1991 s 992WD(1)

Social Security (Administration) Act 1999 clause 16 of Schedule 2

REASONS FOR DECISION

24 April 2009   G. D. Friedman, Senior Member

1.      Josephine Francischelli has a young son who suffers from Asperger’s syndrome.  On 14 May 2008 she lodged a claim for carer allowance in relation to her son.  She was granted this payment on 27 May 2008 and payments were backdated to 20 February 2008. 

2.      In 2008 the Government announced that extra assistance for carers would be given in the form of a one-off carer bonus payment.  Ms Francischelli did not receive this bonus as Centrelink determined she was ineligible.  This decision was affirmed by the Social Security Appeals Tribunal (SSAT) on 11 November 2008 and Ms Francischelli has now applied to this Tribunal for review of that decision.  The parties agreed that the Tribunal will make its decision without holding a hearing.

ISSUE

3.      The issue before the Tribunal is whether Ms Francischelli qualifies for the 2008 carer bonus payment.

LEGISLATIVE SCHEME

4. Section 992WD(1) of the Social Security Act 1991 (the Act) provides:

A person (the qualified person) is qualified for a 2008 one-off payment to carers (carer allowance related) if the following conditions are satisfied in relation to one or more instalments of carer allowance that have been paid to the person:

(a)the instalment was in respect of a period that includes 13 May 2008;

(b)the reason why that instalment covered 13 May 2008 was not only because of clause 16 or 17 of Schedule 2 to the Administration Act;

(c)the person was paid that instalment because of a claim the person made on or before 13 May 2008.

5. Clause 16 of Schedule 2 to the Social Security (Administration) Act 1999 (the Administration Act) relevantly provides that if a person who is qualified to receive carer allowance makes a claim for carer allowance more than 12 weeks after they became qualified, they can receive carers allowance for the period of 12 weeks ending immediately before the day on which their claim was made. This clause means that a person can have their carer allowance backdated to 12 weeks before they made the claim, provided they were qualified to receive the payment during that time.

IS MS FRANCISCHELLI ENTITLED TO THE 2008 CARER BONUS PAYMENT?

6.      Ms Francischelli told a Centrelink authorised review officer on 7 August 2008 that she had obtained a Centrelink carer allowance form from a support group for people with children who have Asperger’s syndrome.  She said she lodged her claim for carer allowance on 14 May 2008 as that was the date she obtained all the relevant medical information about her son’s condition.

7.      Ms Francischelli’s husband told the SSAT that they could have lodged the carer allowance claim form on 27 February 2008, when the diagnosis of their son’s condition was confirmed, however they wanted to obtain a second opinion from a child psychologist.  This was done on 18 April 2008 and 9 May 2008, and a follow-up appointment with their son’s paediatrician was held on 14 May 2008.  Mr Francischelli told the SSAT that the carer allowance claim form was lodged immediately after this appointment.

8.      In Ms Francischelli’s application to this Tribunal lodged 11 December 2008 she stated that the decision not to pay her the carer bonus is unfair.  She said that 14 May 2008 was the earliest she could see the paediatrician to sign the carer allowance form.  She submitted that one day over the 13 May 2008 date should not make any difference since the Government’s intention in giving the bonus is to help children with disabilities such as Autism.

9. In order for Ms Francischelli to qualify for the carer bonus she needs to satisfy all the conditions set out in s 992WD(1) of the Act. Ms Francischelli satisfies the first condition as carer allowance was paid to her in a period that includes 13 May 2008. However, she was paid in this period because her payments were backdated prior to the date of her lodging her claim on 14 May 2008. That is, the payment covering 13 May 2008 was made to her by operation of clause 16 of Schedule 2 to the Administration Act. Therefore she does not satisfy all the conditions set out in s 992WD(1) of the Act and is not eligible for the 2008 carer bonus payment.

10.     The introduction of the 2008 one-off carer bonus payment was intended to provide extra assistance for carers and Ms Francischelli is no doubt correct in stating that the intention was to include parents caring for their child with a disability such as Asperger’s syndrome.  However, the payment was also intended as a one-off payment with definitive time periods and no discretion exists in relation to this type of payment.

DECISION

11.     The Tribunal affirms the decision under review.

I certify that the eleven [11] preceding paragraphs are a true copy of the reasons for the decision of:

G. D. Friedman, Senior Member

(sgd) Mara Putnis

Associate

Date of hearing:  not applicable: decision on the papers
Date of decision:  24 April 2009