MATT McCOY and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2013] AATA 177
[2013] AATA 177
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4985
Re
MATT McCOY
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Senior Member Dr K S Levy, RFD
Date 28 March 2013 Place Brisbane The Tribunal affirms the decision under review.
...........................[Sgd]................................
Senior Member Dr K S Levy, RFD
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Carer payment – Carer allowance – Date of enquiry for payment of benefit – Date of lodgement of claim – Valid lodgement of claim form later than prescribed time limit – No provision for backdating grant to date of enquiry – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 23
Social Security (Administration) Act 1999 (Cth) ss 13, 15, sch 2
CASES
Rhesa Shipping Co SA v Edmunds [1985] 2 All ER 712
REASONS FOR DECISION
Senior Member Dr K S Levy, RFD
INTRODUCTION
The applicant, Mr Matt Douglas McCoy, contacted Centrelink on 21 December 2011 in order to make a formal application for a carer payment (CP) and carer allowance (CA) in order to be the carer for his mother who is aged and needed assistance for daily living. The claim forms, including the required medical reports and statement of income and assets, were forwarded to Mr McCoy. He was advised that the forms needed to be returned within 14 days and the return date of 4 January 2012 was recorded in the letter enclosing the forms issued. Ultimately, he did not return the form for carer payment and carer allowance until 4 May 2012. He signed and dated the form on that date. His application was approved for carer payment on 14 June 2012 but was backdated to be effective from 4 May 2012.
On 20 June 2012, the applicant sought review of the start date of that grant. On 17 July 2012 an authorised review officer (ARO) affirmed the decision to grant him carer payment and carer allowance from 4 May 2012, as did the Social Security Appeals Tribunal (SSAT) on 5 September 2012. On 5 November 2012, he was allowed an extension of time in which to formerly lodge an application for review with this Tribunal.
ISSUE
The issue for determination in this case is whether Mr McCoy is entitled to be paid carer payment and carer allowance at any date earlier than the approved date of 4 May 2012.
EVIDENCE
The applicant contacted Centrelink on 21 December 2011 to make an application for CP and CA. The forms were received by the applicant. He attended the Centrelink office in on 18 January 2012. He stated in evidence before this Tribunal that that was to attempt to lodge the form for CP and CA. That form was incomplete. However, while he was there, he became aware of a possibility of claiming a low income card (LIC).
Between 18 January 2012 and 19 April 2012, Mr McCoy stated that he visited Centrelink offices on a number of occasions. He says that he was enquiring about his application for CP and CA. He stated that it is apparent that any discussions with Centrelink staff seemed to have focused on the application for LIC as he signed that application form on 3 February 2012 and formerly lodged it with Centrelink on 9 February 2012. Centrelink sought some further particulars before that application could be further considered and he had until 28 February 2012 to satisfy those outstanding requisitions. His claim for LIC was rejected on 29 February 2012.
The next contact with Centrelink appears to be on 16 April 2012 when Mr McCoy provided a “Centrepay” form which is a free direct debiting service for those in receipt of Social Security payments. He sought payment of an amount owing to a creditor but he was advised on 19 April 2012 that as he was not receiving a Centrelink payment, that service could not be provided for him.
It was not until 4 May 2012 that Mr McCoy formally lodged a claim for CP and CA by submitting the form originally issued to him as a result of his enquiry on 21 December 2011. A medical report for his mother was also lodged with Centrelink on that day. On 14 June 2012 a decision was made by Centrelink to approve CP and CA to the applicant, but the effective date of commencement was 4 May 2012.
Mr McCoy told the Tribunal in oral evidence that he had gone to the Centrelink office on a number of occasions specifically seeking further information about his claim for CP and CA. He also told the Tribunal that he did not like reading and tried to avoid reading as far as possible. For that reason, he preferred to speak to an officer of Centrelink to seek their advice as to what information he was required to provide.
CONSIDERATION
The issue in this case is whether the decision to pay CP and CA only from the date of lodgement of the application on 4 May 2012 is the correct decision. The applicant submits that because he went to see the Centrelink office on a number of occasions and attempted to lodge his application on 18 January 2012 (which was not accepted because it was incomplete), that it was Centrelink’s error that they processed the application for LIC when he was predominately concerned about the application for CP and CA. As a result, he submits that he should be entitled to be paid from the date of his original inquiry, that is 21 December 2011, or, alternatively on 18 January 2012 when he attended the Centrelink office (although the formal application was not completed and not accepted on that date).
I make the following findings of fact:
(1)The applicant notified Centrelink of his intention to apply for CP and CA on 21 December 2011 and the relevant forms were sent to him;
(2)He took the form for CP and CA (uncompleted at that time) to a Centrelink office on 18 January 2012. The form was not accepted and he retained the form until it was completed, signed, dated and lodged with Centrelink on 4 May 2012;
(3)He made subsequent applications to Centrelink for a LIC and also to use the Centrepay debt paying service;
(4)He visited Centrelink offices on numerous occasions between 9 February 2012 and 19 April 2012 and it appears that Centrelink were providing information and processing his LIC application and responding to his Centrepay request.
(5)On 4 May 2012, Mr McCoy lodged the formal application for CP and CA with Centrelink. On the same day he also lodged a copy of a medical report in respect of his mother which was completed by Dr Louise Fenelon, dated 3 May 2012.
There appears to be some inconsistencies between Mr McCoy’s evidence (and some minor inconsistencies with the evidence he gave to the SSAT) and the Centrelink records of their responses to contact that he made with them over the relevant period. Of some significance is his evidence to this Tribunal that he did not like reading documents and went to lengths throughout most of his life to avoid reading as far as possible. While he presented a lengthy statement of facts and contentions on the morning of the hearing which were comprehensive and well structured, his claim that he did not like reading documents is not inconsistent with the fact that he always wished to speak to someone at Centrelink and seek their advice as to what he needed to do or provide to have his claims successfully processed. It also appears that from 18 January 2012, when he tried to lodge his application forms for CP and CA while also lodging an application for LIC, Centrelink was effectively responding to the only application which was on foot from the 18 January 2012 through to the 19 April 2012, that being the LIC application, and then, for a brief period, his application in regard to the Centrepay service.
Despite the applicant’s claims, there is no evidence to support his claims about error on behalf of Centrelink throughout this period. If he made numerous visits to Centrelink offices, which in his evidence was about six or seven visits, it is surprising that there is not one reference recorded by the three or four officers about him seeking further information in connection with his CP and CA application.
In considering the claim by the applicant, ultimately, the question is whether he satisfies the statutory provisions of the Social Security Act 1991 (Cth) (the Act) or the complimentary provisions of the Social Security (Administration) Act 1999 (Cth) (the Administration Act), demonstrating that his claim should be paid from an earlier date than 4 May 2012.
The relevant statutory provision of the Administration Act relates to the starting date of a claim. In cl 3 of sch 2 of the Administration Act, where a claim is made and if on that day the person is qualified for the benefit he or she is claiming, then the start date for payment of that social security benefit will be the day that the person made the claim.
Under s 13 of the Administration Act, if the claim is lodged within 14 days of the date of an initial enquiry, then the initial date of enquiry will be regarded as the starting date. The applicant’s case is that he should be paid from 21 December 2011 or, alternatively, from 18 January 2012. The facts show that he did not lodge the form within 14 days, that is, by 4 January 2012. He made an enquiry with Centrelink and took the form into the office on 18 January 2012 but it was not completed or signed and the original form was retained by the applicant. I note in the decision of the SSAT, Mr McCoy stated that he lodged the form on 18 January 2012 although he conceded at the hearing at this Tribunal that an officer made a photocopy of it and returned the original to him.
Despite the applicant’s claim, there is no evidence he discussed the claim for CP and CA on multiple occasions as he contends. Apart from the occasion of 18 January 2012, most of the other enquiries appear to be about a claim other than CP and CA. I am sure that he made some enquiries about it during this period but it seems that most of the enquiries for a period of time after the 18 January were about progressing his LIC application.
It is clear that Mr McCoy had the form completed on the 4 May 2012 as he signed and dated it on that day and also formally lodged it with Centrelink on that day. In addition, the required medical report for his mother was also lodged on that day. There was an income and assets test form also required but he had lodged that some time earlier. Therefore, on the face of it, the facts show that that must be the date on which the claim formally starts in accordance with s 13 and cl 3 of sch 2 of the Administration Act. It cannot start from an earlier date unless it was lodged within 14 days of issuing the form on 21 December 2011, that being 4 January 2012 (the return date shown on the letter enclosing the application form for CP and CA.) Section 13(1) makes it clear that the lodgement within 14 days of the enquiry is the standard to be met to have the claim commence on the date of enquiry.
There are some other provisions which allow some discretion. It will be seen that none of those provide any benefit to Mr McCoy’s application. Firstly, s 12 of the Administration Act allows backdating of the start date when the applicant is already in receipt of income support. Mr McCoy was not in receipt of income support and therefore that provision is of no assistance. Section 13(2) of the Administration Act also allows reconsideration for a period up to 13 weeks beyond the standard 14 days. However, that extension can only be considered where the applicant has advised the Secretary during that period of a personal difficulty and medical reasons relevant to the applicant. No evidence exists to support backdating the claim to 21 December 2011 on that basis.
Section 13(3A) of the Administration Act provides a further opportunity for backdating the commencement date if there are “special circumstances” as understood in its legal meaning. No evidence was submitted in that regard, other than the applicant saying that there was an error by Centrelink staff and there was no evidence to support that claim.
Section 15 of the Administration Act also provides some latitude for an applicant where there is an “incorrect claim” for a “social security payment”. This section could apply if the other application made by the applicant, that is the LIC application, was a “social security payment”. However, this unfortunately cannot apply to Mr McCoy either, as the term “social security payment” is defined in s 23 of the Act and LIC does not satisfy that definition.
I find therefore that at the date of the lodgement of the claim for CP and CA on 4 May 2012, there is no statutory provision which allows any backdating of that claim. This is, in some respects, also affected by the lack of evidence to support the claims made. The onus is on an applicant to provide sufficient evidence that a claim is made out: Rhesa Shipping Company v Edmunds [1985] 2 All ER 712. That standard has not been satisfied.
DECISION
In the circumstances therefore the decision to approve the CP and CA with affect from 4 May 2012 is the correct legal decision. That decision under review is affirmed.
I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy, RFD ................................[Sgd]...............................
Associate
Dated 28 March 2013
Date of hearing 20 March 2013 Applicant In person Solicitors for the Respondent Ms Jasmine Forsyth, departmental advocate
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