Ludbey-Pickens and Secretary, Department of Family and Community Services
[2005] AATA 542
•8 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 542
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/1196
GENERAL ADMINISTRATIVE DIVISION
Re: KATHRYN LUDBEY‑PICKENS
Applicant
And: SECRETARY,
DEPARTMENT OF FAMILY ANDCOMMUNITY SERVICES
Respondent
DECISION
Tribunal: Regina Perton, Member
Date: 8 June 2005
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
Re Bienstein and Department of Family and Community Services [2001] AATA 322
REASONS FOR DECISION
8 June 2005 Regina Perton, Member
1. This is an application by Kathryn Ludbey‑Pickens (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 27 September 2004. The SSAT affirmed a decision of an authorised review officer of Centrelink dated 1 June 2004 that carer allowance was not payable to the applicant prior to 16 December 1999.
2. At the hearing on 9 February 2005, the applicant represented herself and gave evidence by telephone. Ms Katherine Navarro, a Centrelink advocate, represented the Secretary to the Department of Family and Community Services (the respondent).
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T16).
BACKGROUND
4. The applicant is the carer of her adult daughter, Kelliane, who was born on 7 August 1975. Kelliane suffers from chondroplasia punctata and Peter’s syndrome, rare conditions which affect her sight, hearing and mobility. Kelliane has received a disability support pension since turning 16 years of age. The applicant, a sole parent, received carer payment until 1998 when she commenced full‑time work.
5. The applicant contacted Centrelink on 16 December 1999 and lodged a claim for carer allowance on 22 December 1999. She was granted carer allowance from 16 December 1999 and continues to receive that allowance.
6. On 14 May 2004, the applicant contacted Centrelink seeking the backdating of carer allowance to a date earlier than 16 December 1999. On 26 May 2004, a delegate of the respondent decided that the applicant was not eligible for back payment. The decision was affirmed by an authorised review officer on 1 June 2004.
7. On 20 August 2004, the applicant sought review of the authorised review officer’s decision by the SSAT. The SSAT affirmed the decision on 27 September 2004. Following the SSAT decision, the applicant lodged an application with the Administrative Appeals Tribunal on 18 October 2004.
8. The issue before the Tribunal is whether the start date for the payment of carer allowance should be earlier than 16 December 1999.
EVIDENCE
9. The applicant told the Tribunal that she had not applied for carer allowance earlier than December 1999 because she did not know of its existence. She said that she had many dealings with Centrelink over the years preceding the application, and that its officers were fully aware of her circumstances and Kellliane’s condition, yet no one informed her that the payment was available. She suggested that Centrelink officers should have taken the initiative and informed her of her entitlement.
10. In her written and oral submissions to this and earlier review bodies, the applicant stated that she had not applied for review of the decision to grant carer allowance from 16 December 1999 within 13 weeks of the decision, as she did not know there was an entitlement to back payment until May 2004.
11. The applicant said that it was not fair or appropriate to differentiate between persons who suffered a disability at birth and persons who were disabled in an accident later in life, where both required significant levels of care. She stated that the back payment should be available to carers regardless of the cause of the disability, in circumstances where they would have been entitled to carer allowance during the period preceding the date of lodgement, had they been made aware of their eligibility.
CONSIDERATION OF THE ISSUES
12. 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.
13. 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.
14. 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.
15. Clause 17 of Schedule 2 to the Administration Act provides that carer allowance for a disabled adult can be backdated further than the claim 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.
16. The term acute onset is not defined in the legislation. In its Guide to the Social Security Act, the respondent has set out the following definition:
1.1.A.52 Acute onset (CA)
Definition For the purpose of CA (adult), acute onset means:
·a disability or medical condition acquired suddenly or over a short period of time (see example 1), including psychological/psychiatric conditions following a traumatic event, OR
·a situation in which a pre-existing disability or condition comes sharply to a crisis (see example 2).
Example 1:
a person has a car accident and acquires a brain injury as a result of the car accident,
or has a heart attack or suffers a stroke. The resulting disability can be directly attributed to the date when the heart attack or stroke occurred,
a person develops a psychological/psychiatric condition over a very short period of time due to a triggering/trauma event such as the Vietnam War.
Example 2:
a person with HIV suddenly develops a disabling infection,
a person with a heart condition suffers a major heart attack.
A pre-existing condition that gradually becomes worse over time CANNOT be an acute onset.
Examples:
·a person with rheumatoid arthritis whose movement is restricted over time,
·a person with vision impairment whose sight becomes progressively worse over time,
·a person with progressive dementia.
A congenital condition CANNOT be attributed to an acute onset.
Example: Birth with an intellectual disability cannot be considered to be attributable to an acute onset.
However, if the condition originates during, or at some time following birth, and its onset can be directly attributed to a specific event or intervention, then the condition can be said to have met acute onset criteria. It would be necessary for such an event to be formally documented as being the primary cause for the condition.
Example: A documented case where developmental impairment is directly attributable to a specific event or medical intervention during or shortly following the birth.
17. The term acute, in relation to disease, is defined in the Oxford English Dictionary (OED on‑line) as coming sharply to a point or crisis of severity; opposed to chronic. Black’s Medical Dictionary, 39th Edition, 1999 gives the following meaning to acute:
A condition of short duration that starts quickly and has severe symptoms. It may also refer to a symptom, for example, severe pain. An ‘acute’ abdomen is a serious disorder of the abdomen requiring urgent treatment, usually surgery. Acute heart failure is the sudden stopping or defect in the action of the heart (Opposite: chronic)
18. Ms Navarro cited the case of Re Bienstein and Department of Family and Community Services [2001] AATA 322 in which issues similar to those in this matter were considered by the Tribunal.
19. On the evidence before it, the Tribunal is not satisfied that Kelliane’s disability is due to an acute onset. Therefore, the applicant’s circumstances do not meet the criteria set out in clause 17 of Schedule 2. The Tribunal finds it is unable to backdate payment pursuant to that clause.
20. Even if the Tribunal had been satisfied that the disability was caused by acute onset, s 109 of the Administration Act would have prevented it from making an order of back payment. That section deals with the date of effect of a favourable determination resulting from review and states:
(1) If:
(a)a decision (the original decision ) is made in relation to a person's social security payment; and
(b)a notice is given to the person informing the person of the original decision; and
(c)within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d)the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the determination embodying the original decision took effect.
(2) If:
(a)a decision (the original decision ) is made in relation to a person's social security payment; and
(b)a notice is given to the person informing the person of the original decision; and
(c)more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d)the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the application for review was made.
21. In this case, the applicant applied for review of the decision to commence payment for carer pension on 16 December 1999 on 14 May 2004, more than 4 years after she was notified of the original decision. Given the provisions of s 109 of the Administration Act, the Tribunal would not have been able to order a back payment even if the criteria set out in Clause 17 of Schedule 2 of the Administration Act had been met.
22. The applicant’s initial contact with Centrelink about lodging a claim for carer payment was 16 December 1999. The Tribunal finds that the earliest date on and from which the applicant could be paid carer allowance is 16 December 1999.
DECISION
23. The Tribunal affirms the decision under review.
I certify that the twenty‑three [23] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of hearing: 9 February 2005
Date of decision: 8 June 2005
Advocate for applicant: Nil‑ Self‑represented
Advocate for respondent: Ms K. Navarro, Centrelink
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