Khan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2011] AATA 608
•31 August 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 608
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0816
GENERAL ADMINISTRATIVE DIVISION ) Re Sherafzal Khan Applicant
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
Respondent
DECISION
Tribunal Senior Member A K Britton Date31 August 2011
PlaceSydney
Decision The decision under review is affirmed. ......................[sgd]........................
Senior Member A K Britton
CATCHWORDS
SOCIAL SECURITY – carer payment and carer allowance – proper start date – exceptions to the general rule that start date is from date claimant makes claim – decision under review affirmed
PRACTICE AND PROCEDURE – scope of reviewable decision – jurisdiction of Tribunal limited by legislation
Social Security Act 1991 (Cth) – s 198(4)
Social Security (Administration) Act 1991 (Cth) – ss 11, 13(1), 13(2), 13(3), 16, 41, 42, 179, 179(1), 181, Sch 2 cl 3(1) and 17(1)
Administrative Appeals Tribunal Act 1975 – ss 25, 33, 44
Re Khan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 44
Re Khan v Secretary, Department of Family Housing Community Service & Indigenous Affairs [2010] FCA 420
The Mutual Life and Citizens’ Assurance Company Ltd v Attorney General (Qld) & anor (1961) 106 CLR 48; [1961] HCA 51
Miller v University of New South Wales (2003) 132 FCR 147; [2003] FCAFC 180
Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374; [1998] FCA 334
REASONS FOR DECISION
Senior Member A K Britton 1.Mr Sherafzal Khan seeks review of a decision to grant him carer payment and carer allowance payable from 16 July 2010. That decision was affirmed by a Centrelink Authorised Review Officer (ARO) and the Social Security Appeals Tribunal (SSAT). Mr Khan contends that he was entitled to both carer payment and carer allowance from an earlier date, namely December 2008. The respondent Secretary disagrees and contends that Mr Khan is not entitled to receive carer payment or carer allowance prior to 16 July 2010.
Background to claim made by Mr Khan on 16 July 2010
2.To put Mr Khan’s submissions in context, it is necessary to set out the background to his most recent claim for carer payment and carer allowance.
3.Mr Khan commenced receiving carer payment and carer allowance in respect of his wife in November 2005. In 2008 Centrelink decided to:
I. Cancel Mr Khan’s carer allowance for the period 10 August 2006 to 8 October 2008.
II. Raise and recover a carer allowance debt for the period 10 August 2006 to 8 October 2008.
III. Cancel Mr Khan’s carer payment for the period 10 August 2006 to 8 October 2008.
IV. Raise and recover a carer payment debt for the period 10 August 2006 to 8 October 2008.
V. Reject Mr Khan’s new claim for carer allowance lodged in December 2008.
VI. Reject Mr Khan’s new claim for carer payment lodged in December 2008.
4.Mr Khan unsuccessfully challenged those decisions in the SSAT (in June 2009) and the AAT (in January 2010): Re Khan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 44. Mr Khan’s appeal to the Federal Court against the decision of the AAT was struck out: Khan v Secretary, Department of Family Housing Community Service & Indigenous Affairs [2010] FCA 420.
5.In July 2010 Mr Khan lodged a fresh claim for carer allowance and carer payment. Centrelink initially refused that claim on the ground that Mr Khan did not meet the “residence requirement” imposed by s 198(4) of the Social Security Act 1991 (Cth). On 25 August 2010, Centrelink reversed that decision and granted Mr Khan carer allowance and payment, from 16 July 2010. That decision was affirmed by an ARO (in October 2010) and by the SSAT (in February 2011). That decision is the subject of Mr Khan’s current application for review lodged with the Administrative Appeals Tribunal (AAT) on 7 March 2011.
Scope of reviewable decision
6.Mr Khan now seeks restoration of his carer allowance and payment to December 2008. He contends that the original decisions made by Centrelink which led to cancel his payment and allowance and later reject his claim made on 2 December 2008 were the result of an administrative error — namely a finding that he failed to meet the “residence requirement”. In support of that contention he points to the finding made by the AAT that he was an Australian resident: Khan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 44 at [21]. He claims that Centrelink’s purported error resulted in a “miscarriage of justice” infecting the subsequent decisions made by the AAT and the Federal Court.
7.While not put in these terms, it is plain that Mr Khan now seeks a review of the decisions to cancel his claim for carer allowance and payment and to refuse his claims made in December 2008, affirmed by the AAT: Khan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 44. While it is correct that the AAT found that Mr Khan met the residence requirement, it nonetheless affirmed the decision to reject his claim for carer allowance and carer payment, albeit on different grounds, namely that he had not been providing his wife with the minimum amount of care necessary to qualify for payment of carer allowance or payment (at [34]).
8.As noted, the decision the subject of Mr Khan’s current application was the decision to grant him carer payment and carer allowance payable from 16 July 2010. In my opinion, the scope of that decision does not extend to the earlier decisions to cancel Mr Khan’s carer payment and carer allowance for the period 10 August 2006 to 8 October 2008 and reject his claim for carer allowance and carer payment lodged in December 2008. The scope of the decision reviewed by the SSAT in February 2011 did not extend to the earlier decisions to cancel, and refuse to grant, carer allowance and payment. It follows that I have no power to review those matters.
9.While there is conflicting authority on whether the doctrine of issue estoppel applies to decisions made by the AAT — see for example the comments of the Full Court in Miller v University of New South Wales (2003) 132 FCR 147 (at 169) — it is settled that the power conferred by s 33 of the AAT Act permits the Tribunal to refuse to allow a matter to be re-litigated (see Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 (at 389, 390)).
10.The issues Mr Khan now seeks to raise have been previously determined by the AAT. Even if accepted that the scope of the decision the subject of Mr Khan’s current application for review extended to the original cancellation and refusal decisions, in my opinion it would not be appropriate to allowance those matters to be “relitigated”.
What is the start date for payment of carer allowance and carer payment to Mr Khan?
11.There is no dispute that Mr Khan lodged a claim for carer allowance and payment in an approved form on 30 July 2010 having contacted Centrelink on 16 July 2010, of his intention to lodge a claim. Nor is there any dispute that this was the first claim lodged by Mr Khan after the claim lodged on 2 December 2008.
12.While there is no issue that Mr Khan contacted Centrelink on a number of occasions after the AAT decision was handed down on 22 January 2010, the parties dispute what he told Centrelink officers on those occasions. Relying on the electronic file notes of those conversations, the respondent Secretary contends that Mr Khan sought to mislead Centrelink officers by asserting that he had been successful in his application to the AAT. Mr Khan denies this and claims that at all material times he made clear that he was making a new claim for carer allowance and payment.
13.Carer allowance and payment, like other social security payments, are generally payable from the date on which an eligible claimant “makes a claim”: ss 41, 42 and cl 3(1) of Schedule 2 of the Administration Act. Among other things, the claim must be in writing and in a form approved by the Secretary: s 16.
14.There are a number of exceptions to the general rule that the “start date” for payment of carer allowance and carer payment is from the date the claimant “makes a claim”. Those exceptions that are potentially applicable in Mr Khan’s case are considered below.
Section 13(1) of the Administration Act
15.Section 13(1) of the Administration Act provides in part that if a person contacts Centrelink about a claim and lodges a claim within 14 days of making that contact, the claim is taken to have been made on the day the initial contact was made. Applying that provision, Centrelink treated Mr Khan’s claim as having been made on 16 July 2010, notwithstanding that he did not lodge a claim in the approved form until two weeks later.
Section 13(2) of the Administration Act
16.Section 13(2) provides that where a person contacts Centrelink about a claim and, having failed to lodge the claim within 14 days, does so within 13 weeks after contact was made, the claim is taken to be made on the day of that initial contact, provided that the decision-maker is satisfied that:
(i) throughout the period starting on the day on which the Department was contacted and ending on the day on which the person lodged the claim, the person was suffering from a medical condition; and
(ii) that medical condition, or circumstances related to that medical condition, had a significant adverse effect on the person's ability to lodge the claim earlier;
17.There is no evidence that Mr Khan contacted Centrelink within 2–13 weeks prior lodging his claim. In any event, there is no evidence and nor is it suggested that throughout that period Mr Khan was suffering from a medical condition that had a “significant adverse effect” on his ability to lodge a claim. Accordingly, s 13(2) has no application.
Section 13(3) of the Administration Act
18.Section 13(3) is in similar terms to s 13(2) and provides that a claim may be taken to be made before the date of lodgement, providing that throughout the 2–13 week period prior to that date (i) the person contacted Centrelink and (ii) the decision maker is satisfied that:
(i) throughout the period starting on the day on which the Department was contacted and ending on the day on which the claimant lodged the claim, the claimant was caring for, or was the partner of, another person; and
(ii) throughout that period, the other person suffered from a medical condition; and
(iii) the medical condition, or circumstances related to the medical condition, from which the other person was suffering had a significant adverse effect on the claimant's ability to lodge the claim earlier;
19.There is no evidence and nor is it suggested that throughout that period, Mr Khan’s wife was suffering from a medical condition that had a significant adverse effect on Mr Khan’s ability to lodge the claim. In addition, there is no evidence that throughout the relevant period Mr Khan contacted Centrelink in respect of that claim.
Clause 17(1) of Schedule 2 of the Administration Act
20.Clause 17 provides:
17 Carer allowance for disabled adult
(1) If:
(a) a person is qualified for carer allowance for a care receiver who is a disabled adult in circumstances where the disability affecting the adult is due to an acute onset; and
(b) the person makes a claim for carer allowance within 12 weeks after the day on which the person became qualified for the allowance in the circumstances mentioned in paragraph (a);
the person's start day in relation to the allowance is the day on which the person became qualified for carer allowance in the circumstances mentioned in paragraph (a).
(2) If:
(a) a person is qualified for carer allowance for a care receiver who is a disabled adult in circumstances where the disability affecting the adult is due to an acute onset; and
(b) the person makes a claim for carer allowance more than 12 weeks after the day on which the person became qualified for the allowance in the circumstances mentioned in paragraph (a);
the person's start day in relation to the allowance is the first day of the period of 12 weeks ending immediately before the day on which the claim was made.
21.There is no evidence and nor is it suggested that in the 12 weeks prior to Mr Khan lodging his claim for carer allowance and payment his wife suffered an “acute onset” of her condition. Mrs Khan’s disability is longstanding. As pointed out by Mr Khan, he was granted carer allowance in 2006 and his wife’s condition is chronic. Accordingly, cl 17(1) of Sch 2 has no application.
Decision
22.By the operation of s 13(1) of the Administration Act, Mr Khan’s claim is treated as having been made on 16 July 2010. Accordingly, the correct start date for payment of both carer allowance and carer payment is 16 July 2010 and the decision under review must be affirmed.
23.In conducting this review, with the agreement of the respondent Secretary, I have decided to limit the issue to be determined to the proper start date of Mr Khan’s carer payment and allowance. I have not addressed whether at the relevant date Mr Khan met the eligibility requirements for payment of these benefits.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton
Signed: ..............................................[sgd]...........................
Associate to Senior Member A K BrittonDate/s of Hearing 22 August 2011
Date of Decision 31 August 2011
Applicant self-representedSolicitor for the Respondent Mr G Lozynsky, Centrelink Program Litigation and Review Branch
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