Maude and Secretary, Department of Family and Community Services

[2004] AATA 1089

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1089

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/601

GENERAL ADMINISTRATIVE DIVISION		)
Re		JACK MAUDE

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member Mrs Josephine Kelly

Date19 October 2004

PlaceSydney

Decision The decision of the Social Security Appeals Tribunal dated 29 April 2004 affirming the decision of an authorised review officer of 12 March 2004 to reject Mr Maude’s claim for Carer Allowance in respect of his brother Mr Laurence Maude is set aside and substituted therefor is a decision that the Applicant is qualified for carer allowance as required by s 37(1)(a) of the Social Security (Administration) Act 1999.

[sgd] Senior Member

CATCHWORDS

SOCIAL SECURITY – carer’s allowance – eligibility denied due to claim being lodged after death of care receiver – requirement that person lodging claim “is qualified” under the Administration Act to receive benefit not a requirement that a person be qualified at time of lodging claim – beneficial legislation to be given liberal interpretation – decision set aside

LEGISLATION

Social Security Act 1991 sections 954(1),

Social Security (Administration) Act 1999 sections 11, 37(1), Schedule 2,

CASELAW

Rose v Secretary, Department of Social Security (1990) 92 ALR 21

REASONS FOR DECISION

19 October 2004 Senior Member Mrs Josephine Kelly      

BACKGROUND

1.      Mr Jack Maude, the Applicant, (“Mr Maude”) was born in 1922.  He is 81 years old.  He cared for his older brother Mr Laurence Maude who was born in 1921, from about 3 June 2003 when Mr Laurence Maude suffered a heart attack, until his death on 30 October 2003.  When Mr Maude attended a Centrelink office on 31 October 2003, reference was made to a Carer’s Allowance.  Mr Maude lodged a carer allowance claim on 7 January 2004 (T17).  In evidence he said thought he might have lodged one in November 2003, however whether he did or not does not affect the outcome of this application.

2.      Mr Maude’s claim was rejected on 9 January 2004.  An authorised review officer confirmed that decision on 12 March 2004 and the Social Security Appeals Tribunal affirmed the decision to reject the claim on 29 April 2004.  Mr Maude then lodged an application with this Tribunal on 21 May 2004.

ISSUES

3. There is no dispute that while Mr Maude cared for his brother he was qualified pursuant to s 954(1) of the Social Security Act 1991 (“the Act”) for the carer allowance if he had made a claim. The issue is one of statutory construction: was Mr Maude relevantly “qualified” for the carer allowance when he did not lodge a claim until after his brother’s death, and therefore when he was no longer caring for him?

4. Section 37(1) of the Social Security (Administration) Act 1999 (“the Administration Act”) requires the Secretary to grant a social security payment if he “is” satisfied the claimant “is” qualified for it (emphasis added). The criteria for qualification are set out in s 954(4) of the Act which also uses the present tense.

THE LAW

5.      The relevant legislation is set out below.

SOCIAL SECURITY (ADMINISTRATION) ACT 1999
Section 11
General rule
(1)  Subject to subsection (2) and Subdivision B, a person who wants to be granted:

a social security payment; or

a concession card;

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

Section 37
Grant of claim

(1)     Subject to section 40, the Secretary must determine that a claim for a social security payment is to be granted if the Secretary is satisfied that:

(a)      the claimant is qualified for the social security payment; and

(b)      the social security payment is payable. (emphasis added)

Schedule 2

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 person’s start day in relation to the payment is the day on which the claim is made.

Part 3—Backdated start day

Division 3—Rules applying to particular social security payments

17 Carer allowance for disabled adult

(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; (emphasis added) 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).

(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; (emphasis added) 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.

SOCIAL SECURITY ACT 1991
Section 954
Qualification for carer allowance—caring for a disabled adult

954(1) A person is qualified for carer allowance for a disabled adult (the care receiver) if:

(a)       the care receiver is an Australian resident; and

(b)       the care receiver is a family member of the person or is a person approved in writing by the Secretary for the purposes of this paragraph; and

(c)       the care receiver has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 30, being a score calculated on the basis of a professional questionnaire score of at least 12; and

(d)       because of the disability from which the care receiver is suffering, the care receiver receives care and attention on a daily basis from the person, or the person together with another person, in a private home that is the residence of the person and the care receiver; and

(f)        the person is an Australian resident.

(Emphasis added)

SUBMISSIONS

6. Mr Richardson for the Respondent argued that the use of the present tense in s 37(1)(a) of the Administration Act and s 954(1), (a), (b), (d) and (f) of the Act has the effect that a person cannot qualify for a carer allowance after the care receiver (in this case Mr Laurence Maude) has died. Further, the legislation makes no provision for the exercise of discretion in such a case. I had the benefit of a Statement of Facts and Contentions (Ex R1) as well as Mr Richardson’s oral argument.

7.      Mr Maude set out his arguments in a Statement of Facts and Contentions (Ex A2).  He contends  that:

“…a normal reading of Section 17 would allow an applicant to claim in circumstances where they are initially “qualified” and “within 26 weeks after the day on which the person becomes qualified” they make a claim.  That is, once you are qualified, and make a claim within 26 weeks of that date, you are entitled to have your start date backdated for that 26 week period.”

8.      He says unfairness would result if that interpretation is not adopted.  For example, a person who claimed a day before the person being cared for died would be entitled to the carer allowance but a person who claimed on the day after would not be so entitled.

9. He also argued that cl 17 of Schedule 2 of the Administration Act made allowance for the fact that a carer of a person suffering an acute onset of an illness is not in a position to lodge a claim because of their commitment to the care of that person and their emotional and social circumstances at the time. Those factors are more relevant when the person being cared for dies, when “the ability of the carer to lodge a claim shortly before the deceased passes away is practicably impossible”. 

10.     Mr Maude also relies quite rightly in my opinion on the fact that the legislation is beneficial legislation, and therefore it should be given an interpretation that advances its purpose. 

11. Finally, he pointed to the application form for the Carer Allowance and also to page 7 of a Plain English booklet he received (Ex A1) which he said contained no statement that a person being cared for must be alive in order to qualify for the pension and, as I understand his contention, for cl 17 to have effect.

12. In response to Mr Maude’s reliance on cl 17, Mr Richardson said that the clause does not address qualification but only sets a “start day” for the allowance where a person “is qualified”. Therefore the clause does not assist Mr Maude. Mr Richardson also pointed out that the introductory words to the underlined passage in Ex A1 relied on by Mr Maude are also in the present tense. Those words are: “If you are caring for an adult…”.

CONSIDERATION

13.     In Rose v Secretary, Department of Social Security (1990) 92 ALR 21 at 524, Justices Lockhart, Gummow and Einfield considered the Social Security Act 1947 (Cth) and said:

“We were referred in argument to various principles of construction of statutes including the principle that remedial legislation should be construed beneficially. The Act is a remedial provision in that it gives benefits to persons and thereby remedies Parliament’s perceptions of injustice. It calls for no narrow or pedantic construction; but, as mentioned earlier, it contains both enabling and excepting provisions which do not therefore necessarily require beneficial interpretation. It depends on the particular statutory provision and an analysis of its language and purpose. Aids to construction, including the principle of liberal interpretation of remedial provisions, are generally invoked when there is some ambiguity on the fact of the particular statutory provision. That is not the case here with the definition of “income” in its introductory general words with which this case is concerned.”

14. In my opinion, the provisions of s 37 of the Administration Act and s 954 of the Act are enabling provisions within remedial legislation that should not be construed narrowly or pedantically. Section 954 of the Act sets out the criteria for qualification for the carer allowance. Section 16 of the Administration Act sets out how to make a claim. That section does not require that the claimant be relevantly “qualified” at the time the claim is lodged.

15. The legislative scheme does not require that a claim has to be made while all the criteria in section 954 of the Act are being satisfied. Rather it specifies that the person is qualified to receive the relevant benefit only for the period during which all relevant criteria in s 954 are being satisfied. The purpose of using the present tense is to require contemporaneous satisfaction of the criteria specified in s 954. Once that has occurred, the person “is qualified” and satisfies s 37(1)(a) of the Administration Act. This approach is supported by the phrase “the day on which the person became qualified” in cl 17(1)((b) of Schedule 2 of that Act.

DECISION

16. For the reasons set out above, I set aside the reviewable decision and substitute for it a decision that Mr Maude is qualified for carer allowance as required by s 37(1)(a) of the Administration Act.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Mrs Josephine Kelly

Signed: Guy Moloney           .....................................................................................

Associate

Date/s of Hearing  25 August 2004
Date of Decision  19 October 2004
Advocate for the Respondent   Gary Richardson