Kershaw and Secretary, Department of Family and Community Services

[2006] AATA 35

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 35

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2005/47

General Administrative   DIVISION		)
Re		MARY KERSHAW

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Lisa Tovey, Member

Date17 January 2006

PlacePerth

Decision The decision under review is affirmed.

..............(sgd L Tovey).................

Member

CATCHWORDS

SOCIAL SECURITY – carer payment – bereavement payment – newstart allowance – effect of inheritance on calculation of payments – turns on own facts.

Social Security Act 1991 (Cth), ss11, 21, 210, 235, 236, 611, 1064, 1118.

REASONS FOR DECISION

17 January 2006 Lisa Tovey, Member           

1.      This is an application by Miss Mary Kershaw (“the applicant”) for a review of a decision of the Social Security Appeals Tribunal (“SSAT”) made on 6 January 2005.  The written reasons of the SSAT were provided on 11 January 2005.  The SSAT affirmed a decision of the delegate of the Secretary of the Department of Family and Community Services (“the respondent”) to reduce the rate of carer payment provided to the applicant during a bereavement period and to reject the applicant’s claim for a Newstart allowance.

2.      The parties agreed that the two issues for determination by the Tribunal were firstly, whether it was appropriate for the respondent to take into account an inheritance received by the applicant during the bereavement period and, as a result, to reduce the rate of carer payment provided to the applicant during that period and, secondly, whether it was appropriate for the respondent to reject the applicant’s claim for a Newstart allowance.

3.      The Tribunal had before it the T-documents lodged pursuant to s37 of the Administrative Appeals Act 1975 (Cth) (T1 – T15; 1 - 42).  In addition, the Tribunal received into evidence the respondent’s Statement of Facts and Contentions dated 7 November 2005, together with its attachments 1-7.

Background and Evidence

4.        The facts are not in dispute.  The applicant was caring for her mother and had been in receipt of a carer payment since 1 June 1995.  On 3 August 2004 her mother passed away.  On 13 August 2004 an officer from Centrelink wrote to the applicant and advised her that she would be paid a bereavement lump sum and that she would continue to receive the carer payment until 2 November 2004.

5.      On or about 29 September 2004 the applicant received an inheritance from her mother’s estate.  This led the respondent to record an increase in the value of the applicant’s financial assets as from at least 22 October 2004.  As a consequence, the respondent reduced the rate of the carer payment payable to the applicant in respect of the last two carer payments that were made.  The respondent, however, did not send the applicant a notice advising her of the reduction in her carer’s payment and the applicant only discovered this fact after the reductions were made.

6.      On 28 October 2004 the applicant completed an application for a Newstart allowance.  In her Customer Declaration Form she indicated that she owed her own home, and that she had bank deposits totalling $264,017 (in two separate accounts of $71,206 and $192,811) and other assets valued at $1,500.  As the applicant’s assets were higher than the limit at which the Newstart allowance was payable, the claim was rejected.

Consideration of the Issues

7. In relation to bereavement payments, s235(1) of the Social Security Act 1991 (Cth) (“the Act”) relevantly provides that if a person is receiving a carer payment because he or she ordinarily cares for a care receiver and the person receiving the care dies, then the person remains qualified for the carer payment during the “bereavement period”. The “bereavement period” is relevantly defined by s21(1) of the Act to be the period of 14 weeks from the day on which the person dies.

8. Further, s236 of the Act provides:

“If a person is qualified for a carer payment solely because of section 235, the rate at which the pension is payable is to be determined having regard to the person’s actual circumstances.”

9. Sections 210 and 1064 of the Act then set out the way in which the rate of a person’s carer payment rate is to be calculated. In particular, Pension Rate Calculator A in s1064 requires that the income and assets of the person are to be taken into account in determining the carer payment rate. By s11(1) of the Act, “asset” is defined to mean “property or money (including property or money outside Australia)” and clearly encompasses the money in the applicant’s bank accounts. Section 1118 of the Act then requires that certain assets are to be disregarded for the purposes of calculating the value of the person’s assets. There is, however, nothing in s1118, in the context of this case, which affects the relevant calculation. It is clear that the value of the applicant’s assets would include the inheritance received from the estate of her mother and, as a result, it was appropriate for the respondent to take the amount of the applicant’s inheritance into account in calculating the carer’s payment rate that was applicable.

10. In relation to the claim for Newstart allowance, s611(1) of the Act states that a “Newstart allowance is not payable to a person if the value of the person’s assets is more than the person’s assets value limit”. The assets value limit is provided for by s611(2) of the Act, which is then subject to indexation. The relevant indexed amount for the applicant, namely a single person who is a home owner, was $153,000. The applicant’s assets exceeded that limit. It was, therefore, appropriate that the claim be rejected.

11.     The applicant submitted that the manner in which the carer’s payment was reduced, particularly in that she received no notice of the intended reduction, was inappropriate.  The respondent’s representatives accepted that the way in which the applicant discovered that her carer’s payment was reduced was most regrettable.  The Tribunal agrees with this.  In this regard, of course, the applicant had, of course, only recently lost her mother and every effort ought to have been made to deal with her in a sensitive manner.

12.     The applicant, however, accepted that the legal position, both in relation to the issue of the reduced carer’s payment and her claim for the Newstart allowance, was not in her favour.

DECISION

13. As indicated above, the Act is quite clear in that the person’s actual circumstances must be taken into account in determining the carer payment rate applicable and that the person’s assets must be taken into account in determining whether a Newstart allowance can be granted. As such, as indicated by the decision of the Social Security Appeals Tribunal, the applicant’s inheritance was a relevant factor to be taken into account in determining these issues.

14.     For these reasons, the Tribunal affirms the decision under review.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         (sgd E M Jordan)           .....................................................................................

Associate

Date/s of Hearing   16 December 2005
Date of Decision   17 January 2006
Counsel for the Applicant          Unrepresented
Solicitor for the Respondent      Ms M Comlon and Ms R Bradley