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

[2019] AATA 1512

Leighton; Secretary, Department of Social Services and (Social services second review) [2019] AATA 1512 (28 June 2019)

Division:GENERAL DIVISION

File Number(s):      2018/6644

Re:Secretary, Department of Social Services

APPLICANT

AndCallie Leighton

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:28 June 2019

Place:Adelaide

The Tribunal sets aside the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 4 October 2018, and in substitution therefore decides that the decision of the Authorised Review Officer dated 27 June 2018 be reinstated, namely, that the start date of the Respondent’s carer payment of 10 March 2017 was the correct and preferable decision.

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Senior Member B J Illingworth

CATCHWORDS

SOCIAL SECURITY – carer payment – whether start date of payment is correct – date of lodgement of claim form – decision under review set aside and substituted

LEGISLATION

Social Security Act 1991

Social Security (Administration) Act 1999

SECONDARY MATERIALS

Social Security Guide – Version 1.254 released 6 May 2019

REASONS FOR DECISION

Senior Member B J Illingworth

28 June 2019

INTRODUCTION

1. This matter relates to an application for review filed by the Secretary, Department of Social Services (“the Applicant”) on 14 November 2018. The decision the Applicant seeks to have reviewed is the decision of the Social Security & Child Support Division of the Administrative Appeals Tribunal (“AAT1”) dated 4 October 2018 which granted the Respondent’s application for carer payment dated 15 August 2014 and arrears from 15 August 2014 to 10 March 2017.

2. Ms Natalie Leighton (“NL”) resides with her mother, Ms Patricia Leighton (“PL”), at her home. NL commenced an online relationship with the Respondent who was a citizen of the United States of America and resided there. The Respondent subsequently travelled to Australia to visit NL. She arrived in Australia in June 2011, and thereafter resided with NL at PL’s home. The Respondent and NL are now married and continue to live in PL’s home.

3. After the Respondent arrived in Australia, and in late 2011, NL was diagnosed with Multiple Sclerosis and was granted the Disability Support Pension. PL and the Respondent cared for NL. Subsequently, PL had to deal with her own health issues and, for a period of time, NL was bedridden because of the medical treatment she was receiving. The Respondent then took on the substantive care of NL.

4. On 15 August 2014, the Respondent became a permanent resident of Australia. On that day, and because the Respondent was granted permanent residency, she, NL, and PL attended at a Centrelink office for the purposes of enquiring about transferring PL’s carer allowance to the Respondent. The Centrelink officer had a conversation with them. The Centrelink officer was informed that the Respondent was not an Australian citizen, to which she replied the Respondent was ineligible for the carer payment and to “come back when she becomes an Australian citizen”. This information was incorrect.

5. The Respondent was granted Australian citizenship in 2017. She then applied for the carer payment, which was granted and gave effect from 10 March 2017.

6. The Respondent sought an internal review of the decision, seeking that arrears be paid from an earlier date, namely 15 August 2014. The main issue on review was whether, on 15 August 2014, the Applicant lodged the earlier claim for carer payment with Centrelink.

7. On 27 June 2018, an Authorised Review Officer (“ARO”) affirmed the earlier decision of the Applicant, and found that the Respondent did not make a claim for carer payment prior to 10 March 2017, and that the Respondent was not entitled to arrears of carer payment from 15 August 2014.[1]

   [1] Exhibit A, T Documents, pages 17 – 20.

8. The Respondent then applied to the AAT1 for review of the ARO’s decision.[2] The AAT1 set aside the decision of the ARO. The AAT1 decided that on 15 August 2014, the Respondent applied for a carer payment.[3]

   [2] Ibid, pages 5 – 11.

   [3] Ibid, pages 12 - 16.

9. The AAT1 found that the Centrelink officer who assisted the ladies that day asked a detailed series of questions about their circumstances and entered the answers online. When the officer was told that the Respondent was not an Australian citizen but studying to become a citizen, the officer replied that did not qualify for the carer payment and told her to come back when she became a citizen.

10. The AAT1 said that “… the most likely inference from this sequence of events is that the officer was taking instruction and filling out an online claim for carer payment.” The AAT found that “The initial departmental officer had recorded the details of a claim to the point where that officer was able to refuse the claim out of hand. In the absence of evidence to the contrary, the Tribunal infers that the Department had sufficient details to enable the claim to be assessed and therefore finds that a claim was lodged within the meaning of the Act on 15 August 2014.”[4] The AAT1 went on to find that in so doing, all necessary information for lodging the claim form and placing information within the possession of the Department had occurred. The AAT1 found the claim for carer payment had been lodged.

    [4] Ibid, at page 14.

11. There was no record of any claim form on Centrelink computer records. The AAT1 further decided “That claim was rejected out of hand as soon as the officer learnt that [the Respondent] was not a citizen. The fact that the out of hand rejection meant that the claim was not recorded and, in all likelihood, was deleted without further action, does not affect the legal characterisation of the acts involved. A claim was lodged and rejected within the meaning of the Act, notwithstanding that no record of those acts survive.”[5]

    [5] Ibid, at page 15.

12. The AAT1 ordered that the decision to refuse the claim for carer payment made on 15 August 2014 be set aside and, in substitution, the claim dated 15 August 2014 is granted and the Respondent (who was the Applicant in that matter) is entitled to arrears of carer payment from 15 August 2014 to 10 March 2017.

13. The Applicant submits that the AAT1 drew impermissible inferences about the factual circumstances that occurred on 15 August 2014, including that an online claim form was filled out by the Centrelink officer, that the online claim form had been deleted, and that the claim was lodged within the meaning of the Act.

14. The Applicant was represented by Mr Oliver Morris from the Department of Human Services. The Respondent was represented by PL.

    ISSUES

15. The issues for the Tribunal are:

    (a)Whether the Respondent lodged a claim for carer payment with Centrelink on 15 August 2014; and

    (b)Whether the Respondent is entitled for arrears of carer payment from 15 August 2014 to 10 March 2017.

16. The Applicant submitted that if no claim had been lodged, the Tribunal did not have jurisdiction to grant the Respondent carer payment on and from 15 August 2014. The Respondent did not dispute that submission.

17. Hence, the preliminary question for the Tribunal was whether or not a claim for carer payment had been lodged on 15 August 2014 or arguably within 14 days of that date such that any entitlement to carer payment was enlivened by the operation of s 13 of the Social Security (Administration) Act 1999.

18. Evidence was received from the Respondent, NL and PL, which was directed particularly towards what occurred at the Centrelink office on 15 August 2014.

    LEGISLATIVE FRAMEWORK

19. The relevant legislation in this matter is contained within the Social Security Act 1991 (“the Act”) and the Social Security (Administration) Act 1999 (“the Administration Act”).

20. Section 11 of the Administration Act requires a person wanting to be provided with a social security payment to make a claim in accordance with Division 1.

21. Section 16 of the Administration Act sets out how a person may make a claim, and relevantly states:

    (1)  A person makes a claim for a social security payment or a concession card:

    (a)  by lodging a written claim for the payment or card; or

    (b)  by making the claim in accordance with subsection (7).

    (2)  A written claim for the purpose of subsection (1) for one social security payment or for a concession card must be in accordance with a form approved by the Secretary for the purposes of this subsection.

    (3)  …

    (4)  A written claim is lodged by being delivered:

    (a)  to a person apparently performing duties at a place approved for the purpose by the Secretary; or

    (b)  to a person approved for the purpose by the Secretary; or

    (c)  in a manner, and to a place, approved for the purpose by the Secretary.

    ...

    (5)  …

    (6)  …

    (7)  A person may make a claim in a manner approved by the Secretary for the purposes of this subsection.

    (8)  The power of the Secretary to make an approval under subsection (7) is not limited by any other provision of this section.

22. Section 13 of the Administration Act provides particular circumstances in which a claim may have its start date deemed to be the earlier date of contact with the Department, however is inapplicable to the Respondent’s circumstances.

23. Clause 3(1) of Schedule 2 of the Administration Act provides that a person’s start date for a social security payment is the date on which the claim is made.

24. Section 8.1.1.20 of the Guide provides the general provisions for claim lodgement. Amongst other things, it requires that a claim is in writing (including by electronic means), signed and that all necessary questions in the claim form are answered.

    THE EVIDENCE

    The Respondent

25. The Respondent confirmed the background of her personal circumstances as detailed under heading INTRODUCTION above. Her evidence was then directed to the events that occurred on 15 August 2014.

26. She said PL had been NL’s carer and received carer allowance payments which she used solely for NL, and included taking NL to medical appointments. However, PL worked and had to balance her work schedule with the care of NL. PL also had her own health issues at the time, including undergoing treatment for cancer.

27. The Respondent said that, when granted permanent residency, she and NL went to a Centrelink office. PL did not go with them; she was working. There they waited and eventually went to a counter and spoke to a gentleman. NL did the talking because the Respondent did not know much about the Centrelink process.

28. NL explained that she wanted to change the carer arrangement so that the Respondent was NL’s carer rather than her mother, PL. This was because NL always needed someone with her and the Respondent could, and was, performing that role.

29. The Respondent said they went into Centrelink just to talk to someone. The gentleman asked where they lived and NL gave him their address. The Centrelink officer did not have a computer turned on. He did not type anything at any stage during their conversation. He did not write anything down. The Centrelink officer was informed that the Respondent was from America, that she was not working, and that they were enquiring about the Respondent’s eligibility to receive a carer pension. The gentleman said that the Respondent could not receive a carer payment because she was not an Australian citizen. The Respondent and NL accepted what he said and left.

30. In early 2017, the Applicant became an Australian citizen and, on 10 March 2017, the Respondent contacted Centrelink about a claim for carer payment. Subsequently, NL completed an online application for carer payment on behalf of the Respondent. The Respondent read the form and signed it. The application for carer payment was granted and took effect from 10 March 2017.

31. The Tribunal then asked questions on behalf of PL. The Respondent then recalled that PL was present at the time she and NL attended Centrelink. PL explained to the gentleman that the Respondent was from America and that they were enquiring about the Respondent’s entitlement to carer pension. Nonetheless, the Respondent did not recall the gentleman looking at a computer or entering any information into the Centrelink records.

32. The Tribunal finds that the Respondent was an honest witness who tried her best to assist the Tribunal. Her memory was not good, which the Tribunal accepts is explained by the passage of time from 15 August 2014, and because she did not have any or adequate understanding of the Centrelink system. There were inconsistencies between her evidence and the other witnesses which the Tribunal will later refer to in this decision.

    Evidence of NL

33. NL similarly confirmed their personal circumstances as detailed above. She said that the Respondent came to Australia in July 2011 and that she, NL, was diagnosed with Multiple Sclerosis in August 2011.

34. NL said that she and the Respondent went to Centrelink on 15 August 2014 because that was the day the Respondent received her permanent residency, and they went “… to see if [the Respondent] qualified for the carer payment”. NL said that she assumed a person had to be an Australian citizen before being entitled to Centrelink payments, but they went there to find out whether or not that was in fact the case. She “thought they’d ask”. She said the Respondent previously had some brief contract work, but at the time she was not working. They were struggling financially.

35. NL said that her mother drove her and the Respondent to the Centrelink office. PL did not join them but waited in the car. They lined up for what seemed like a long time. When they reached the front of the line there was a lady with a pen and notepad who asked what they were there for. This lady’s role was to direct customers to the Centrelink officer who could deal with the enquiry. NL said that she asked the lady if she could tell her what status a person was required to meet to apply for a carer pension. The lady said that a person must be an Australian citizen. The lady had no computer and made no written entry or record of the conversation. NL said that she did not think she needed any further information and because the lady confirmed her suspicion, namely that a person must be an Australian citizen to receive Centrelink payments, they then left.

36. NL confirmed in cross-examination that they had asked what status a person must be to receive a carer pension, and that they were told a person has to be an Australian citizen. She could not recall any conversation about NL’s relationship with the Applicant or that the Applicant was then studying for the Australian citizenship test. It was not a lengthy conversation.

37. The Tribunal finds NL to be an honest witness who did her best to assist the Tribunal. However, her ability to accurately recall the events that occurred was also affected by the passage of time, since she and the Respondent went to Centrelink on 15 August 2014.

    Evidence of PL

38. PL said at the start of proceeding that she wished to be the Respondent’s advocate rather than a witness. However, it became apparent that PL may have had evidence that was relevant to the issues to be decided by the Tribunal. To his credit, and acting as a model litigant, Mr Morris submitted that PL may have relevant evidence to present and that, if the Tribunal was minded to receive evidence from her, he had no objection. That, he submitted, would afford the Tribunal the opportunity to receive the best evidence from which a decision could be made. In the circumstances, the Tribunal agreed with Mr Morris and PL was invited to give evidence.

39. PL gave a similar history as that of NL and the Respondent. She described the care arrangement for NL following her diagnosis of Multiple Sclerosis. There was a period when NL became bedridden for three months and was using a wheelchair. Her ability to care for NL was also compromised by her own battle with cancer, and accordingly the Respondent was providing much of the support and care for NL.

40. At her doctor’s suggestion and when the Respondent was granted her permanent residency, PL thought the Respondent was then eligible to receive Centrelink payments. She formed this belief from her prior experiences with Centrelink.

41. PL drove the Respondent and NL to Centrelink and waited in the car for them to return. They returned after about 30 minutes and told her the Respondent did not qualify because she was not an Australian citizen. PL drove the Respondent and NL home, and then returned to Centrelink with the Respondent.

42. PL said that upon their return to Centrelink, they spoke to a woman. It was a different person to whom the Respondent and NL spoke with earlier. She explained that the Respondent and NL had been in earlier that day enquiring about the carer pension and that the Respondent was from America. PL could not recall her customer reference number but gave the officer her name. The officer had an iPad and used it to look up PL’s records. She told PL that she was receiving the carer allowance and asked whether they were applying for the pension. There was initially some confusion about the enquiry but when PL explained they were enquiring about the residency status of the Respondent and her entitlement to Centrelink carer payment, the officer said that a person must be an Australian citizen.

43. PL and the Respondent left the office and went home. PL told NL that she was correct about the requirement to be an Australian citizen. They trusted and accepted the advice given by the Centrelink officer. Since then, they have struggled financially.

44. PL said that on the second occasion, she and the Respondent were not at Centrelink for very long. It could have been 10 – 15 minutes or less; it was “not an awfully long time”. Their discussion was an informal one. No claim form was being completed. The person did not take any of the Respondent’s details. All she did was “punch” PL’s name and address into the iPad which enabled the record relating to PL to be revealed.

    Closing Submissions

45. The Applicant submitted that each of the witnesses was credible and each did their best in giving evidence. The Tribunal agrees with that submission.

46. The CRAM reports[6] are the records relating to PL and NL. The Applicant submitted that there were no records of the Respondent at the time of, and immediately following, the attendance at Centrelink on 15 August 2014. The personal details of the Respondent were never entered into the computer system. The Respondent was an “unknown” to Centrelink at that time. No such reports would be in existence until the Respondent applied for the carer payment after she became an Australian citizen. That accords with the evidence.

    [6] Exhibits B and C.

47. Insofar as the records establish that PL’s Centrelink record was accessed on 15 August 2014 but no other entry was made, that too accords with PL’s evidence that an officer accessed records using an iPad but did nothing further. At no stage was the Centrelink officer recording anything on a carer payment application form or into the computer system at all, nor was that officer given personal details of the Respondent such that those details were, or were required to be, entered into the Centrelink records or in an application for the carer payment.

48. The evidence of the Respondent and NL both confirmed that no Centrelink officer operated a computer or took any written record when together they made their enquiry on 15 August 2014. On this occasion, it was nothing more than a brief oral enquiry relating to the Respondent’s entitlement to Centrelink payments as a permanent resident of Australia and citizen of the United States of America. There were no lengthy questions and answers as indicated in the decision of the AAT1 and there was no evidence from which an inference could be drawn that a carer payment application form was completed either in whole or in part.

49. PL’s evidence confirmed that she and the Respondent returned to Centrelink which may explain the Respondent’s evidence that PL was present when the enquiry was made of the Centrelink officer. In any event, PL’s evidence confirmed that she made a similar enquiry of the officer in relation to the Respondent’s entitlement to the carer payment and was given the same advice, namely that the Respondent must be an Australian citizen.

1. PL confirmed that no carer payment application form was being filled in on the computer and the only interrogation of Centrelink records occurred when the officer punched in her name and address into the record to access her details. Hence, there was no computer entry, no document sourced, and no application form completed in whole or in part. What occurred was nothing more than a conversation between each of the ladies and an officer regarding the Respondent’s entitlement to the carer payment as a permanent resident of Australia but while remaining a citizen of the United States of America.

2. Accordingly, the Applicant submits that it was not open for the AAT1, nor is it open for this Tribunal, to find that a claim had been made on 15 August 2014. The Applicant submitted that if the Tribunal accepted each of the witnesses’ evidence regarding the advice given by the Centrelink officers, that advice was wrong and the appropriate remedy for the Respondent may be available by way of an application for Compensation for Detriment caused by Defective Administration (“the CDDA Scheme”) and not by application to this Tribunal. The Applicant invited the Tribunal to set aside the decision of the AAT1 and reinstate the decision of the ARO dated 27 June 2018.

3. The Respondent (through her advocate, PL) agreed with the closing submissions of the Applicant. She acknowledged that the evidence of the Respondent and NL was different, which she submitted could be explained by the passage of time.

4. The Respondent said that they had relied on the information given to them by the Centrelink officer which they accepted as correct. Had she known it was wrong, she would have pushed for a claim to be lodged and pursued it on 15 August 2014.

5. The Respondent agreed that no formal document was completed either by use of a computer or by completing a hard copy of an application form and that on 15 August 2014 they only had a brief informal conversation with the Centrelink officer.

   CONCLUSION

   Did the Respondent lodge a claim for carer payment on 15 August 2014?

6. The Tribunal accepts that the Respondent and NL attended Centrelink on 15 August 2014 and had a brief conversation with a Centrelink officer as described by NL. The Tribunal finds that no computer was accessed nor was any claim form considered or completed in part or in whole on that occasion.

7. Further, the Tribunal accepts that when PL and the Respondent returned to Centrelink that day, they had another brief conversation with a Centrelink officer who confirmed the advice earlier given, namely that the Respondent had to be an Australian citizen to be entitled to the carer payment. Again, there was no detailed series of questions asked and answered, no computer entry made, no document sourced, and no application form considered or completed in whole or in part. The Tribunal accepts the advice that the Respondent must be an Australian citizen to be eligible for the carer payment was wrong and accepts that thereafter, and until the Respondent applied for carer payment after becoming an Australian citizen, she was caused to act to her detriment because of that wrong advice and incompetence of the Centrelink officers.

8. The Tribunal accepts that no claim for carer payment was made or lodged by the Respondent at Centrelink on 15 August 2014, and that the first claim made by her was in 2017 after she became an Australian citizen.

9. Because the Tribunal finds that an application for carer payment was not lodged by the Respondent on 15 August 2014, the Tribunal does not need to consider the second issue of whether the Respondent is entitled to arrears of carer payment form 15 August 2014 to 10 March 2017.

10. Having regard to the evidence before the Tribunal which was not disputed, the Tribunal finds that the decision of the AAT1 was incorrect. There was no evidence before the Tribunal that enlivened any inference to be drawn in the terms referred to by the AAT1. The evidence before the Tribunal was that no application for carer payment was made online with the assistance of a Centrelink officer. There is no evidence that a detailed series of questions were asked and answered. There was no computer entry made or deleted by a Centrelink officer on that day.

11. As the Tribunal finds there was no claim for carer payment lodged by the Respondent on 15 August 2014, it follows that there is no jurisdiction for the Tribunal to backdate that payment to that date and entitle the Respondent to arrears of carer payment from 15 August 2014 to 10 March 2017.

    DECISION

12. The decision of the AAT1 dated 4 October 2018 is set aside and in substitution it is ordered that the decision of the ARO dated 27 June 2018 is reinstated.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

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Associate

Dated: 28 June 2019

Date of hearing:	24 June 2019
Advocate for the Applicant:	Ms Patricia Leighton
Advocate for the Respondent:	Mr Oliver Morris, Department of Human Services