Marshall and Secretary, Department of Family and Community Services

[2005] AATA 813

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 813

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/1275

GENERAL ADMINISTRATIVE  DIVISION

Re:         BERNADETTE MARSHALL

Applicant

And:       SECRETARY,
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:             24 August 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, 109(1), 109(2), 237

REASONS FOR DECISION

24 August 2005  Regina Perton, Member

1.      This application for review arises out of a dispute as to the date from which arrears of carer allowance can be paid to Mrs Bernadette Marshall (the applicant) who cares for her disabled adult son, Cameron.  On 19 October 2004, the Social Security Appeals Tribunal (SSAT) affirmed a decision of an authorised review officer (ARO) of the Secretary to the Department of Family and Community Services (the respondent) made on 7 September 2004.  The ARO decided that arrears of carer allowance were not payable to the applicant prior to 2 July 2004.     

2.      At the hearing on 20 May 2005, the applicant represented herself.  Katherine Navarro, a Centrelink advocate, represented the respondent.     

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T17) (the T‑documents). 

BACKGROUND

4.      The applicant’s son, Cameron, who is now  30 years old, has been severely disabled since birth and is cared for at home by his parents and siblings.  His needs are many and his behavioural problems cause many difficulties for the family.  On 20 October 1999, the applicant lodged a claim for carer payment and carer allowance in relation to her care of Cameron which was granted.  She also received carer allowance in relation to another son, Keegan.  On 9 March 2001, the applicant contacted Centrelink by telephone.  The Centrelink record of the  telephone conversation is as follows (T5):

…Customer rang and stated that she did not want to receive the Carer Payment (Care Receiver: son Cameron Marshall) from 9 MAR 2001.  She also mentioned she wanted to go back to work.  There were no further explanations.  Have cancelled Carer Payment on CDCR screen.  Customer said she would like to continue receiving the Carer Allowance for son Keegan. 

5.      On the day of that telephone conversation, Centrelink sent two  letters to the applicant.  One of the letters concerned the cancellation of carer payment in relation to Cameron because you no longer provide constant care to another person.   The second letter referred to the cancellation of carer allowance for Cameron because he does not meet the daily care requirements.  Both letters advised the applicant to telephone or visit the Centrelink staff if she thought the decision was wrong.  She was also informed of her right of review, with the warning that if she did not seek review within 13 weeks she would only get back payment of allowance from the date she asked for the review.  Centrelink continued to pay carer allowance for Keegan.

6.      On 8 September 2003, Centrelink wrote to the applicant asking that she respond to its request  in June 2003 that she complete a review form and supply contemporary information about the medical condition of her son, Keegan.  She was advised that carer allowance for Keegan would be cancelled if she did not return the completed form.  A Centrelink officer noted that the applicant had telephoned on 14 October 2003 in which:

…Caller insisted that payment be cancelled. 

Caller has been advised that they may still be entitled to payment….Reason for Cancellation:  Cus request; cus doesn’t want to rtn the cda saved rev.

7.      On 14 October 2003, Centrelink wrote to the applicant confirming the cancellation of carer allowance for Keegan at her request.

8.      On 2 July 2004, the applicant contacted Centrelink about the cancellation of carer allowance for Cameron.  The Centrelink record indicates that the applicant stated that she had not realised that payment had been stopped and that she had continued to care for Cameron.  The applicant is noted as stating that she was not informed that the payment had been cancelled and that she wanted the decision reviewed. 

9.      On 6 July 2004, the applicant lodged a fresh application for carer allowance in relation to her care of Cameron This was subsequently granted and backdated to 6 July 2004.    The applicant sought to have the grant backdated to 9 March 2001 but was refused.

10.     On 7 September 2004, an ARO determined that the payment could be backdated to 2 July 2004, the date upon which the applicant contacted Centrelink about its failure to pay her carer allowance for Cameron for almost three years. 

11.     On 14 September 2004, the applicant sought review of the ARO’s decision by the SSAT.  The SSAT affirmed the decision on 19 October 2004.  The applicant lodged an application for review with this Tribunal on 15 November 2004. 

12.     The issue before the Tribunal is whether the applicant can receive back payment of carer allowance from 9 March 2001, or some other date earlier than 2 July 2004.   

EVIDENCE

13.     The applicant told the Tribunal that her failure to receive carer allowance was due to an error on the part of Centrelink.   She was adamant that she had not asked that carer allowance for Cameron be cancelled, as he required a lot of care.  She said that Centrelink had often mixed up Cameron and Keegan’s names.  The applicant said that she could not recall receiving any of the correspondence from Centrelink, copies of which Centrelink provided in the T‑documents. 

14.     The applicant described the many difficulties she and the rest of the family experienced in taking care of Cameron.  Cameron attended the hearing and was cared for by his brother, Justin, while the applicant gave evidence.  Consequently, the Tribunal was able to see firsthand an example of the challenges faced. 

15.     The applicant said that it was not until she changed bank accounts and sought information about certain entries in her passbook from the bank that she became aware that she was not getting the payments.   She said that there was always difficulty in meeting financial obligations for the family.  She cited the damage that Cameron causes to the house and windows, the extra costs in caring for his physical needs and the difficulties in taking him to school and other places outside the home.  Justin spoke passionately about how hard life is for his mother and how much she and the whole family had sacrificed to take care of Cameron.

CONSIDERATION OF THE ISSUES

16.     The administrative aspects of the date from which social security payments, including carer allowance, can be paid are set out in the Social Security (Administration) Act 1999 (the Administration Act). Section 11 of the Administration Act states a person must make an actual claim for a social security payment. Section 13 states that where a person contacts Centrelink to foreshadow a claim, and lodges the claim more than 14 days but less than 13 weeks after contacting Centrelink, the person is, in certain circumstances, deemed to have made the claim on the day of the initial contact.

17.     In relation to the fresh claim for carer allowance, the applicant contacted Centrelink on 2 July 2004 to ask about the cancellation of the allowance and was advised to lodge a fresh claim which she did on 6 July 2004.  The Tribunal is satisfied that the appropriate date from which payment should be made in relation to the fresh claim was 2 July 2004.

18.     However, the applicant seeks back payment for the period between 9 March 2001 when carer allowance was cancelled for Cameron and 2 July 2004.  There is no dispute that Cameron’s condition during that period was such that his mother would have qualified for the non means-tested carer allowance.  The applicant was adamant that she had not advised Centrelink to cancel carer allowance in relation to Cameron. But whether the error was hers or Centrelink’s will not alter the outcome in this matter.

19. In looking at whether back payment is available to the applicant to the date of cancellation or some other date prior to 2 July 2004, the Tribunal is bound by s 109 of the Administration Act, which provides differing outcomes where a favourable decision is made after review, depending on when the person affected by a Centrelink decision sought review. Section 109 provides that:

109.(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.

109.(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.

20. In this case, Centrelink sent a letter to the applicant on 9 March 2001 advising her of the cancellation of carer allowance for Cameron, her right to review and the consequences of failing to do so within 13 weeks. That letter of 9 March 2001 constituted notice of the original decision to cancel the carer allowance. The applicant gave evidence that she could not recall receiving the letter, but there is no evidence to suggest that it did not arrive. Section 237 of the Administration Act states that if a notice is sent by prepaid post to the postal address of the applicant at the last known address, notice of the decision is taken to have been given to the person. The Tribunal is satisfied that the applicant was notified of the decision to cancel carer allowance in March 2001. She did not contact Centrelink until 2 July 2004 about that decision, which was more than 3 years after the decision.

21.     The Tribunal does not have the authority to overrule the legislative requirement that review must be sought within 13 weeks of a decision for a person to be entitled to be paid arrears. Therefore, the Tribunal has no option but to affirm the decision under review. This is so even where, as in this case, the original error may have been Centrelink’s. 

DECISION

22.     The Tribunal affirms the decision under review.

I certify that the twenty‑two [22] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  20 May 2005
Date of decision:  24 August  2005
Advocate for applicant:                Self‑represented
Advocate for respondent:            Ms K. Navarro, Centrelink