King and Secretary, Department of Family and Community Services

[2006] AATA 74

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 74

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2005/754

GENERAL ADMINISTRATIVE DIVISION

Re:         ROBERT ERNEST KING

Applicant

And:       SECRETARY,
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:             1 February 2006

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

SOCIAL SECURITY – carer allowance – start date ‑ whether backdating possible

Social Security (Administration) Act 1999 ss 11, 13, 16, 41(1), 42, cl 3(1), 17 of Schedule 2

Guide to the Social Security Act  cl 1.1.A.52

REASONS FOR DECISION

` February 2006  Regina Perton, Member

1.      Robert Ernest King is the carer of a friend, Carmen Coluso.  Mrs Coluso suffered a debilitating stroke in June 2004.  Centrelink administers carer allowance for the Department of Family and Community Services (the respondent).  On 26 May 2005, a Centrelink officer decided that Mr King was entitled to carer allowance backdated to 8 October 2005.  On 2 June 2005, an authorised review officer of Centrelink affirmed the decision that carer allowance was not payable to Mr King prior to 8 October 2004.  Mr King applied for review of the decision to the Social Security Appeals Tribunal (SSAT).  On 1 August 2005, the SSAT affirmed the Centrelink decision of 26 May 2005.  Mr King applied to this Tribunal for review of the SSAT decision. During this time Mr King was in receipt of age pension.

2.      At the hearing on 23 January 2006, Mr King appeared by himself.  Mr Brian Clarke, a financial counsellor with the Salvation Army, has been representing Mr King but was unavailable to attend the hearing.   In a telephone conversation with a Tribunal officer, he offered to provide assistance by telephone if required but indicated that he had not personally been involved in lodgement of the application for carer allowance.  Wayne Zita, a Centrelink advocate, represented the respondent.

3.      The issue before the Tribunal is whether the start date for the payment of carer allowance to Mr King should be earlier than 8 October 2004. 

EVIDENCE

4.      Mr King told the Tribunal that he had applied for carer allowance in July 2004 when Mrs Coluso was still in hospital.  He said that a person at the hospital had helped him to do so.  He described filling out many forms and attaching medical evidence from Mrs Coluso’s doctor.  Mr King provided the Tribunal with a letter dated 3 June 2005 from Mrs Coluso’s doctor, Dr Azad Kodom, in which she stated that she had provided medical reports about Mrs Coluso in July 2004 and May 2005.  Mr King also provided copies of Dr Kadom’s reports dated 5 July 2004 and 27 October 2004 describing Mrs Coluso’s health.  None of these was specifically addressed to Centrelink.  Mr King also provided the Tribunal with copies of correspondence dated 28 July 2004 concerning access to home help through Hume City Council and details of the assistance obtained for Mrs Coluso.  

5.      Mr King said that he had attended at the Broadmeadows office of Centrelink to lodge the form for carer allowance in July 2004.  He described standing in a queue; then when he got to the head of the queue, being told that the person accepting those forms was going to lunch and then being told to go to the end of another queue.  He said that he suffered from respiratory problems, which were exacerbated by the air conditioning at the Broadmeadows office.  He said he distinctly remembered giving his form to a young lady who was leaving Centrelink shortly to start a hairdressing career.  He was adamant that he had lodged a form for carer allowance, rather than any other document relating to Ms Coluso’s age pension, or a document relating to any of the other matters over which he is in dispute with Centrelink. 

6.      In his written and oral submissions to this and earlier review bodies, Mr King said that he had contacted Centrelink on several occasions to check on the progress of the claim for carer allowance that he had lodged in July 2004.  He believes that Centrelink has mislaid that claim form.  He also believes that Centrelink has not made electronic file notes of conversations he had with Centrelink personnel when he had contacted Centrelink on several occasions to check on the progress of the claim.  He expressed the view that Centrelink was deliberately making things difficult for him.  He also described a number of other issues he had with Centrelink. Mr King told the Tribunal that he was in  difficult financial circumstances.

7.      On the day after the hearing, 24 January 2006, Mr King sent a facsimile to the Tribunal providing further details of a dispute concerning age pension and provided copies of correspondence sent to Brian Clarke, the Salvation Army financial counsellor who has been assisting Mr King. 

8.      Centrelink records indicate that there were discussions with Mr King in relation to matters relating to his and Mrs Coluso’s pensions prior to 8 April 2005.  Mr Zita advised the Tribunal, before and at the hearing, that there is no record of a specific oral or written application for carer allowance lodged by Mr King prior to 8 April 2005. 

9.      After the hearing, Centrelink, at the Tribunal’s request, checked Mrs Coluso’s and Mr King’s paper files to ensure that an earlier application for carer allowance had not been accidentally filed without being processed.  On 27 January 2006, Mr Zita provided written advice to the Tribunal that a search had been undertaken of the files and that there are no papers relating to Mr King’s claim for carer allowance on Mrs Coluso’s file.  He also confirmed that there was no carer allowance claim on Mr King’s paper file apart from those dated 15 April 2005 and 3 May 2005, already provided to the Tribunal.  He stated that …all claims are processed “off-file” and are only attached to a customer’s file following completion of all action.  

CONSIDERATION OF THE ISSUES

10. Section 11(1) of the Social Security (Administration) Act 1999 (the Administration Act) provides that a person must make a claim for a social security payment to be eligible for that payment. Section 16 of the Administration Act sets out the steps involved in making a claim. These include the requirement that a written claim be lodged in accordance with a form approved by the Secretary.

11. Section 41(1) of the Administration Act provides that, unless another provision of the social security law provides otherwise, a social security payment becomes payable on the person’s start day. Section 42 provides that the start day is calculated in accordance with clause 3(1) of Schedule 2 of the Administration Act, which states that:

3.(1)        If:

(a)a person makes a claim for a social security payment; and

(b)the person is qualified for the payment on the day on which the claim is made;

the person’s start day in relation to the payment is the day on which the claim is made.

12. Section 13 of the Administration Act provides a mechanism for deeming that a person’s start day may be the date the person contacts Centrelink:

13.(1)      For the purposes of the social security law, if:

(a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and

(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and

(c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and

(d)the person lodges a claim for the social security payment within 14 days after the Department is contacted;

the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.

13. Clause 17 of Schedule 2 to the Administration Act provides that carer allowance for a disabled adult can be backdated further than the deemed start date in certain circumstances: 

17.(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 26 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).

17.(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 26 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 26 weeks ending immediately before the day on which the claim was made.

14.     In this case, Mrs Coluso suffered a stroke.  There is no dispute that her disability is due to an acute onset.  Centrelink deemed the date of application to be the date of Mr King’s enquiry on 8 April 2005 (s 11) and backdated the start date of carer allowance by 26 weeks i.e. to 8 October 2004. 

15.     There is no record of Mr King lodging a written claim for carer allowance prior to 8 April 2005.   Mr King visited Centrelink offices and made telephone calls to Centrelink prior to that date.  However, there were a number of other complex issues that Mr King was dealing with at Centrelink, including matters relating to Mrs Coluso’s age pension and to his own age pension.  It may well be that the plethora of issues that Mr King had to deal with led to a failure to lodge the particular form for carer allowance.  As there is no record, on computer or in written form, indicating that Mr King lodged a completed application form for carer allowance prior to 8 April 2005, the Tribunal is not entitled to backdate the carer allowance to a date more than 26 weeks prior to that date.

16.     The Tribunal finds that the earliest date on and from which Mr King could be paid carer allowance is 8 October 2004.

17.     The Tribunal notes the other concerns raised by Mr King, concerning age pension and other matters, in his dealings with Centrelink.  The Tribunal also notes Mr King’s difficult financial circumstances. However, the Tribunal can only consider the reviewable decision. The reviewable decision in this matter only concerns Mr King’s claim for backdating of carer allowance beyond 8 October 2004.  

DECISION

18.     The Tribunal affirms the decision under review.

I certify that the eighteen [18] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  23 January 2006
Date of decision:  1 February 2006
Advocate for applicant:                Self‑represented
Advocate for respondent:            Mr W Zita, Centrelink