Locke and Secretary, Department of Family and Community Services

[2004] AATA 236

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 236

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/724

GENERAL ADMINISTRATIVE DIVISION		)
Re		ELAINE LOCKE

Applicant

And SECRETARY, DEPARTMENT OF
FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr I R Way, Member

Date9 March 2004 

PlaceBrisbane

Decision The Tribunal affirms the decision under review.   

(Sgd) I R Way
  Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – Age Pension – Carer Payment – whether Applicant entitled to arrears payment of Age Pension between the period Carer Payment ceased and claim for Age Pension lodged

Social Security Act 1991 ss43, 47

Social Security (Administration) Act 1999 ss 8, 11, 12, 13, 41, 42, Schedule 2

REASONS FOR DECISION

9 March 2004  Mr I R Way, Member         

1.      This is an application by Elaine Locke for review of the decision of the Social Security Appeals Tribunal (SSAT), dated 23 July 2003, which affirmed the decision of Centrelink, dated 16 April 2003, to pay Mrs Locke Age Pension from 15 April 2003, and not pay arrears from the date Carer Payment ceased, on 9 September 2002.

2. The Tribunal had before it the documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T29) and the Secretary’s Statement of Facts and Contentions, with attachments, dated 20 January 2004.

3.      The Respondent was represented by Mr M Hutcheson.  Mrs Elaine Locke was self-represented and in view of her hearing difficulties, was assisted by her daughter, Mrs D Morgan.

4.      The issue in this matter is whether the Applicant is entitled to receive Age Pension from 11 June 2002.

Legislative Framework

5.      This matter is to be determined within the provisions of the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the SSA Act). The relevant provisions of these Acts are as follows:

·     The Act

“Qualification of age pension

43(1)A person is qualified for an age pension if the person has reached pension age and any of the following applies:

(a)the person has 10 years qualifying Australian residence;

(b)the person has a qualifying residence exemption for an age pension;        

(c)the person was receiving a widow B pension, a widow allowance, a mature age allowance or a partner allowance, immediately before reaching that age;

(d)if the person reached pension age before 20 March 1997 – the person was receiving a widow B pension, a widow allowance or a partner allowance, immediately before 20 March 1997.

43.(1A)  A woman is qualified for an age pension if:

(a)       the woman has reached pension age; and

(b)       the woman’s partner has died; and

(c)both the woman and her partner were Australian residents when her partner died; and

(d)the woman was an Australian resident for a continuous period of at least 104 weeks immediately before the day she lodged the claim for the age pension.”

47(1)    An age pension is not payable to a person if the person is already receiving a service pension.

47.(2)  If:

(a)       a person is receiving an age pension; and

(b)another social security pension or a service pension becomes payable to the person;

the age pension is not payable to the person.”

·SSA Act

“Principles of administration

8.       In administering the social security law, the Secretary is to have regard to:

(a)       the desirability of achieving the following results:

(i)the ready availability to members of the public of advice and information services relating to income support generally and to the social security payments that are available;

(ii)the ready availability of publications containing clear statements about income support entitlements and procedural requirements;

(iii)the delivery of services under the law in a fair, courteous, prompt and cost-efficient manner;

(iv)the development of a process of monitoring and evaluating delivery of programs with an emphasis on the impact of programs on social security recipients;

(v)the establishment of procedures to ensure that abuses of the social security system are minimised; and

(b)the special needs of disadvantaged groups in the community; and

(c)the need to be responsive to the interests of the Aboriginal and Torres Strait Islander communities and to cultural and linguistic diversity; and

(d)the importance of the system of review of decisions under the social security law; and

(e)the need to ensure that social security recipients have adequate information regarding the system of review of decisions under the social security law; and

(f)the need to apply government policy in accordance with the law and with due regard to relevant decisions of the Administrative Appeals Tribunal and the Social Security Appeals Tribunal.

General rule

11.(1)  Subject to subsection (2) and Subdivision B, a person who wants to be granted:

(a)       a social security payment; or

(b)       a concession card;

must make a claim for the payment or card in accordance with this Division.

Certain transfers between payments

12.(1)  Subject to subsection (3), if:

(a)a person is receiving an income support payment; and

(b)while receiving the payment, the person becomes qualified for another income support payment (the other payment); and

(c)the Secretary determines that the person is to be transferred to the other payment;

the person is taken, for the purposes of the social security law, to have made a claim for the other payment on the day on which the person became qualified for the other payment.

12.(2)  Subject to subsection (3), if:

(a)a person who has been receiving an income support payment ceases to receive the payment; and

(b)immediately after ceasing to receive that payment, the person becomes qualified for another income support payment (the other payment); and

(c)the Secretary determines that the person is to be transferred to the other payment;

the person is taken, for the purposes of the social security law, to have made a claim for the other payment on the day on which the person became qualified for the other payment.

12.(3)  The Secretary may only make a determination under subsection (1) or (2) if the transfer is one that the Secretary could have determined should occur apart from this section.

Deemed claim—person contacting Department about a claim for a social security payment

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.

Commencement

41.(1)  Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person’s start day in relation to the social security payment.

41.(2)  Unless another provision of the social security law provides otherwise, a concession card takes effect on the person’s start day in relation to the card.

Start day

42.  For the purposes of the social security law, a person’s start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule

Schedule 2 – Rules for working out start day

Part 2 – General rules

Start day – general rule

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 persons’ start day in relation to the payment is the day on which the claim is made.”

Background Facts

6.      The background facts in this matter are not in dispute and the Tribunal finds that:

(a)      the Applicant was in receipt of Carer Payment from 25 June 1998; 

(b)      the Applicant lodged a claim for Age Pension on 12 May 2000; 

(c)the Applicant was transferred from Carer Payment to Age Pension with effect from 9 May 2000; 

(d)      the Applicant lodged a reclaim for Carer Payment on 7 August 2000;

(e)the Applicant was transferred from Age Pension to Carer Payment with effect from 1 August 2000; 

(f)on 14 June 2002, the Applicant contacted Centrelink notifying she would no longer be caring for her mother and ceased to qualify for Carer Payment;

(g)an Age Pension New Claim was sent to the Applicant on 14 June 2002 with instructions indicating that if the claim was returned within 14 days of the contact date, payment could be made from the initial date of contact; 

(h)on 18 June 2002, Centrelink received notice from the Royal Brisbane Hospital indicating the caree had been admitted into full time care from 11 June 2002 and Carer Allowance was cancelled effective 11 June 2002; 

(i)the Applicant was advised of the cancellation of Carer Payment, effective 9 September 2002, by way of letter sent 27 August 2002;

(j)this letter indicated the temporary extension of Carer payment to the Applicant had expired 9 September 2002 as the person receiving the care had permanently entered full time care; 

(k)the Applicant contacted Centrelink on 15 April 2003 and lodged a claim for Age Pension on 16 April 2003 and 

(l)       the Applicant was granted Age Pension with effect from 15 April 2003.

Applicant’s Evidence and Submissions

7.      Mrs Locke was born the 18 March 1937 and told the Tribunal she first applied for and received the Age Pension in March 1997 when she turned 60.  The Tribunal notes that the Applicant’s evidence is not consistent with the Respondent’s contention that the Applicant has been qualified to receive Age Pension since 18 March 1998.  However, nothing turns on this inconsistency as, in any event, the Applicant was qualified to receive Aged Pension at a date which precedes the payment of Carer payment from 25 June 1998.

8.      Mrs Locke explained the reason for the various changes of payment to her of Age Pension or Carer’s Pension as set out above.  She said her mother’s health had deteriorated to the point where she needed care and her doctor had advised that  Carer’s payment was potentially more beneficial than Age Pension.  But, she said, subsequent changes arose from reassessments of her mother’s condition and eventually care ceased when her mother was admitted to hospital (and eventually nursing home care).

9.      Mrs Locke told the Tribunal that she knew she was entitled to the Age Pension when Carer’s Pension ceased and that she thought payment of Age Pension to her would happen automatically after she (and her daughter) had advised Centrelink on 14 June 2002 that she was no longer caring for her mother.  It was the Applicant’s evidence that she had advised Centrelink on 14 June 2002 that she would be living with her daughter, Mrs Morgan, who was purchasing a home at 7 Akers Road, Lawnton, and that settlement of the sale was expected after 24 June 2002.  It was the Applicant’s evidence that Centrelink was told her change of domicile would take place shortly after settlement.  She said she had not been given any claim forms for Age Pension at the Centrelink office, nor had there been any discussion about having to submit a claim form, nor any notification that further documentation/claim forms would be mailed to her.  She said she had never received the correspondence sent by the Respondent on 14 June 2002.  It was sent to 7 Akers Road, where she was not residing.  The letter was addressed to her, rather than care of her daughter (Mrs Morgan) in whose name the property was being purchased.  She said the Vendors would not have known who Mrs Locke was, when they received Centrelink’s letter on 14 June 2002.  The Tribunal notes Mrs Morgan’s evidence that, because of her mother’s deafness, her mother was not always aware of, or sure of, what was going on, as she would be if her hearing was not impaired.

10.     Mrs Locke said she did receive a letter from Centrelink dated 27 August 2002 which notified her that her Carer’s payment extension expired on 9 September 2002, but this letter made no mention whatsoever of any need to reclaim Age Pension or follow-up advice about her lack of response to the letter of 14 June 2002.

11.     Mrs Locke told the Tribunal that she had her own account with the National Australia Bank, into which Carer/Age Pension payments were made.  She said she accessed this account by card (which was not a credit card) and that the bank only sent her annual statements.  She said that there had been money in the account to enable her to continue using the account, and that it was some time before she realised that the Age Pension was not being credited to her account, and it was following this that she actually lodged a claim for Age Pension.  She said she did not check the state of her account regularly.

12.     In summary, Mrs Locke submitted that she had previously received the Age Pension;  was qualified to receive this pension at the time when the Carer payment ceased; that Centrelink were well aware of her circumstances and had not advised her directly of the need to make a further claim for Age Pension; that she had not received any advice that Centrelink had sent her about claiming Age Pension, as their letter was not sent to the appropriate address; and that Centrelink, in advising her by letter of the cancellation of her Carer payment on 9 September 2002, had made no mention of the need to claim Age Pension (or that a claim for Age Pension had not been lodged following their earlier correspondence).

13.     In essence, Mrs Locke submitted that she and Centrelink knew she was entitled to Age Pension and that, in the absence of any advice from Centrelink to the contrary, she thought that Age Pension would be automatically paid to her when Carer’s Pension ceased.

Respondent’s Submission

14. Mr Hutcheson submitted that pursuant to section 47 of the Act, the Applicant was entitled to receive either Carer’s Pension or Age Pension, not both. It was submitted that:

“Section 47 of the Social Security Act 1991 (Attachment E) provides for multiple entitlement exclusion. The provision explains if a person is receiving an Age Pension and another social security pension becomes payable the age pension is no longer payable to that person.

When the Applicant ceased to qualify for Carer Payment from 11 June 2002, Age pension became payable from this date if a claim was lodged within 14 days. Prior to 11 June 2002 the Applicant was qualified for both Carer Payment and Age Pension. A distinction exists between ‘qualification’ and ‘payability’. Section 47 of the Social Security Act 1991 refers to exclusion from ‘payability’ of multiple entitlements, whereas section 12 of the Sociality Security (Administration) Act 1999 refers to satisfying ‘qualification’ criteria for a particular benefit.

The Respondent contends subsections 12(1) and 12(2) of the Social Security (Administration) Act 1999 (t3,pa11) which allow for transfers between payments without a claim do not apply. The Applicant did not ‘become qualified’ for Age pension whilst receiving Carer payment as described in subsection 12(1) or ‘immediately after ceasing to receive’ as described in subsection12(2). The Applicant had been qualified to receive Age Pension throughout the period Carer Payment was paid to the Applicant.”

15. Mr Hutcheson drew the Tribunal’s attention to the provisions of Sections 11, 13, 42, and Schedule 2 of the SAA Act, whereby an Applicant must make a claim to be paid Age Pension and whereby the start date of any such payment is the day on which a claim is made; or when the Applicant makes initial contact with Centrelink and lodges a claim within 14 days of that initial contact, the start date is the date of initial contact. Mr Hutcheson also submitted that the Tribunal should note that the Applicant had submitted a claim form in both previous instances in 2000, to initiate transfer between payments.

16.     It was the Respondent’s submission that payment of Age Pension to the Applicant with effect 15 April 2003 was correct, as this was the first date on which she contacted Centrelink (with her subsequent claim lodged a day later) in respect of payment of Age Pension following the cancellation of her Carer’s Pension payment on 9 September 2002.

17.     As such, it was submitted that the decision under review should be affirmed.

Consideration

18.     At the outset the Tribunal finds that the Applicant and her daughter, Mrs Morgan, are credible witnesses. They both answered the questions put to them in a forthright and frank manner.  The Tribunal has no doubt that their answers were truthful.

19.     The Tribunal is satisfied that the Applicant was not told directly by Centrelink of the need to make a claim for Age Pension when she approached Centrelink in June 2002 in respect of the change in the care arrangements for her mother. Furthermore, the Tribunal is satisfied that the letter sent by Centrelink to the Applicant on 14 June 2002, about a new claim for Age Pension, was not received by the Applicant, and that Centrelink’s further letter of 27 August 2002 advising the Applicant of the cancellation of carer payment which was received by the Applicant, made no mention of the need to make a claim for Age Pension;  or that following the letter of 14 June 2002, there had been no response from the Applicant.

20.     The Tribunal accepts the Applicant’s evidence that she did not receive monthly statements from her bank, and hence was not aware for some time that she was not in receipt of the Age Pension after her Carer’s payments ceased.

21.     The Tribunal accepts that the Applicant honestly believed that Aged Pension  would be automatically paid when Carer’s payment ceased, even though, on various occasions, as noted above, she had initiated reclaim forms.

22.     The Tribunal also accepts that Mrs Locke has significant hearing difficulties, which preclude her from being as fully aware of her circumstances as she might otherwise be.

23.     The questions before the Tribunal are whether or not her claim for Age Pension can be back-dated, or whether there are any provisions within the legislation which allow payment of Age Pension to be made to Mrs Locke prior to 15 April 2003, without her having to make any claim.

24.     The Tribunal makes the point that in considering both of these questions, the Tribunal must apply the law as it stands.

25.     In respect of the first question, there are no legislative provisions which allow for backdating Age Pension claims and the Tribunal is satisfied that Mrs Locke’s claim can not be backdated.

26. In respect of the second question, the Tribunal accepts the Respondent’s submission that the relevant provisions of the SSA Act in Subdivision B – Cases Where Claim Not Necessary - have no application in this case. The start date of the payment of Age Pension to the Applicant must be dealt with within the provisions of Section 11, 41 and 42 of the SAA Act (as set out above). In accordance with these provisions, the Respondent has correctly determined that the Applicant’s Age Pension is payable with effect 15 April 2003 and that arrears of payment of Age Pension prior to this date, and from the date Carer’s payments ceased on 9 September 2002, are not payable.

27.     The Tribunal therefore affirms the decision under review.

28.     The Tribunal notes that in the course of the hearing of this matter, it became apparent that the Applicant has made a claim for compensation for detriment caused by defective administration. The Tribunal is mindful that it has no jurisdiction to consider such claims. However, the Tribunal’s observations about the difficulties Mrs Locke faces because of her deafness;  about her honest belief that she did not need to claim Age Pension;  and the absence of direct advice from Centrelink to the contrary, might be of assistance in the consideration of her compensation claim.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member

Signed:         (Sgd) N Grant

Associate

Date of Hearing  12 February 2004
Date of Decision  9 March 2004

The Applicant was assisted by her daughter, Mrs Morgan
For the Respondent                  Mr Hutchenson, Departmental Advocate