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

[2020] AATA 684

Kelly and Secretary, Department of Social Services (Social services second review) [2020] AATA 684 (27 March 2020)

Division:GENERAL DIVISION 

File Number(s):2019/3801
2019/3802      

Re:Jacqueline Kelly  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Ms Lynette Rieper, Member

Date:27 March 2020

Place:Hobart

The Tribunal affirms the decision under review.

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Ms Lynette Rieper, Member

SOCIAL SECURITY – carer payment – carer allowance – rent assistance – start date – date of claim – whether payment can be backdated – claim for carer payment made outside 13 week time limit – sought review of rent assistance cancellation outside 13 week time limit – decision affirmed

Legislation

Social Security (Administration) Act 1999

REASONS FOR DECISION

Ms Lynette Rieper, Member

27 March 2020

1. Miss Kelly seeks review of two decisions made in the Social Security and Child Support Division of this Tribunal on 28 May 2019.

2. The first decision was in respect of whether Miss Kelly could be paid carer payment or carer allowance from a date earlier than 12 January 2018.

3. The second decision was in respect of whether Miss Kelly could be paid rent assistance in the period after it was cancelled on 22 April 2016.

4. A hearing was held on 11 February 2020 in respect of each matter.  Miss Kelly appeared in person and the Respondent was represented by Mr Khoo via telephone.

   CARER PAYMENT AND CARER ALLOWANCE START DATE

5. The Act provides that, in order to be paid, a person must lodge a claim in an approved form (sections 11 and 16 of the Social Security (Administration) Act 1999 (the Act)). Generally the start date for a claim is the date on which that claim is lodged (Schedule 2 to the Act), except that the start date can be backdated in some limited circumstances (section 13 of the Act).

6. The Respondent does not dispute that Miss Kelly is entitled to carer payment and carer allowance.  She made a claim for the benefits on 20 March 2018 and was granted payments from 12 January 2018 on the basis that:

   (a)12 January 2018 was the date she first advised the Respondent of an intention to claim;

   (b)that she lodged her claim within the subsequent 13 weeks; and

   (c)she was suffering a medical condition which prevented her making the claim any earlier. 

7. The Tribunal notes that the claim form bears a submission date of 20 March 2018 and a “claim creation date” of 12 January 2018. The position of the Respondent at the hearing was that this is insufficient to satisfy subsection 13(2) of the Act, but that it does not press this point.

8. Miss Kelly seeks payment of carer payment and carer allowance from 3 May 2017 which is when she says she started providing full-time care to her brother, who has a terminal illness. 

9. Miss Kelly’s argument is essentially that she was in receipt of newstart allowance at the time and was in contact with both Centrelink and her employment services provider.  Miss Kelly asserted that they knew she was a carer and they should have told her that she was receiving the wrong type of benefit. 

10. Miss Kelly has a specific recollection of attending a Centrelink office in September 2017. However, she concedes that she did not make a claim or enquire about a claim for carer payment and carer allowance prior to 12 January 2018 because she was not aware the benefits existed until she was told about it.  She thinks it was someone at her employment services provider who eventually advised her that she should apply.

11. The Respondent’s position is that Miss Kelly’s carer payment and carer allowance have already been backdated to the earliest possible date.  The Respondent argues that even if Miss Kelly was found to have advised of an intention to claim in September 2017, she did not make a claim within the subsequent 13 weeks and therefore the claim cannot be backdated to September 2017 or any other date earlier than 12 January 2018.

12. Section 13 of the Act only allows the start date for payment of a benefit to be a date prior to the date on which the approved claim was lodged in very limited circumstances. The Respondent is correct in submitting that the legislation does not provide any basis on which Miss Kelly can be granted an earlier start date for payment of her carer payment and carer allowance and that her start date has been backdated to the earliest possible date allowable under the Act.

13. For these reasons, the Tribunal must affirm the decision under review. 

14. The Tribunal acknowledges that Miss Kelly feels let down by the Respondent and her employment services provider given that they knew her circumstances and should have advised her of her rights and entitlements. It is beyond the jurisdiction of this Tribunal to provide any redress beyond what is permitted by the Act, however the Tribunal notes that Mr Khoo provided Miss Kelly with details of another potential avenue of redress for Miss Kelly to explore once this review has been finalised.

    RENT ASSISTANCE

15. Prior to 22 April 2016 Miss Kelly was in receipt of rent assistance as part of her newstart allowance.  It was cancelled from 22 April 2016 because Miss Kelly did not verify her rent by providing a copy of her lease, tenancy agreement or other evidence of her rent obligations.

16. The documents before the Tribunal include notices to Miss Kelly dated 24 March 2016 and 12 April 2016 which show that her regular payments from 13 March 2016 were to include a rent assistance component of $103.00. There is also a notice before the Tribunal dated 22 April 2016 which showed that her regular payments no longer included a rent assistance component.

17. Miss Kelly did not seek a review of the decision not to pay her rent assistance until 29 May 2018.

18. During the hearing, Miss Kelly said that she takes responsibility for her mistake and she admitted that she did not look at the documents she received from the Respondent carefully enough.

19. The Respondent’s position is that Miss Kelly was required to seek a review within 13 weeks of receiving the decision contained in the notice of 22 April 2016 or one of the subsequent decisions regarding her newstart entitlements. 

20. Section 109 of the Act states that, where a decision is made in relation to a social security payment and a notice of that decision is given to the person, if the person does not apply for review of that decision within 13 weeks of the notice being given then a favourable decision can only have effect from the date the person sought the review.

21. The effect of section 109 is that the earliest date Miss Kelly can be entitled to arrears of rent assistance is 29 May 2018, being the date on which she first sought a review. However, Miss Kelly was no longer in receipt of newstart allowance by that time and so no arrears can be payable.

22. The Tribunal also notes that the Respondent submits that the decision to determine her rate of newstart allowance without including a component of rent assistance was also correct, because there is no objective evidence to confirm that Miss Kelly was paying rent from 22 April 2016.  The Tribunal accepts that submission.

23. It follows that the decision under review must be affirmed.

    
    
    

I certify that the preceding 23 (twenty- three) paragraphs are a true copy of the reasons for the decision herein of Ms L Rieper, Member.

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

Associate

Dated: 27 March 2020

Date(s) of hearing:	11 February 2020
Applicant:	In person
Solicitor for the Respondent:	Gary Khoo