[2012] AATA 927
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/2454
Re
MAXINE BOSCH
APPLICANT
And
SECRETARY, DEPT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Ms K Hogan, Member
Date 20 December 2012 Place Perth DECISION SUMMARY
The Tribunal sets aside the decision under review and substitutes a decision that the applicant is to be paid carer allowance from 21 July 2011.
…(sgd) K Hogan………
Ms K Hogan, MemberCatchwords
Social Security Law – Carer Allowance – Entitlement to Carer Allowance as a Consequence of an Acute Onset of Illness – Start Date of Carer Allowance – Backdating of Start Date of Carer Allowance
Legislation
SocialSecurity Act 1991
Social Security (Administration) Act 1999
REASONS FOR DECISION
Ms K Hogan, Member
20 December 2012
HISTORY
On 13 October 2011, Centrelink recorded that the applicant made contact in regard to claiming for carer allowance with respect to her mother.
On 27 October 2011, the applicant lodged a written claim for carer allowance.
On 16 November 2011, a Centrelink employee decided to grant the applicant’s claim for carer allowance from 13 October 2011.
On 2 December 2011, the applicant requested a review of the original decision and on 9 February 2012, a Centrelink Authorised Review Officer (ARO) affirmed the decision.
The applicant appealed the ARO’s decision to the Social Security Appeals Tribunal (SSAT) which set aside the ARO’s decision and substituted a decision to grant carer allowance from 3 August 2011.
The applicant appealed to this Tribunal on 15 June 2012.
THE ISSUE
The issue to be considered by the Tribunal is the date from which the applicant can be paid carer allowance with respect to her mother.
EVIDENCE
The Tribunal was provided with a number of documents including:
(a) the section 37 documents;
(b) written submissions from the applicant and the respondent.
The Tribunal heard oral submissions on behalf of the parties.
THE LEGISLATIVE FRAMEWORK
The legislation relevant to this decision is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
The qualifications for carer allowance are contained in section 954 of the Act.
The start date for payment to a person qualified for Social Security payments is contained in sections 41 and 42 of the Administration Act which provide that the start date is determined in accordance of schedule 2 of the Administration Act.
The general rule is that if a person makes a claim for a Social Security payment and is qualified for that payment the start date is the date on which the claim was made.
Sections 11, 13 and 16 of the Administration Act provide that a person must make a written claim for a Social Security payment. If that person contacts Centrelink prior to lodging a written claim then they may be granted payment from the date upon which they first contacted Centrelink about the matter.
Relevant to the applicant’s circumstances is clause 17 of the Schedule 2 of the Administration Act which provides that if a person is granted carer allowance for a person over 16 years and the illness or disability for which carer allowance has been granted was the result of an acute onset, then the carer allowance may be back dated for a period of 12 weeks.
APPLICANT
The applicant sought review of the decision on the basis that the date of grant of carers allowance should be backdated to the time of the acute onset of the illness due to “incorrect information provided by treating doctor and Centrelink staff” [T1; page 2]. The applicant claimed that she contacted Centrelink, on 21 July 2011, to enquire about carer allowance, at which time she was advised to wait until test results were received. The applicant was further advised that the claim, when made, would be backdated.
In support of this contention, the applicant provided evidence of her mother’s diary extract, dated 21 July 2011, which was purported to be a contemporaneous record of the applicant’s contact with Centrelink on that day.
Whilst there is no corresponding Centrelink record for the diary extract, the applicant gave evidence that she attended Centrelink at that time.
RESPONDENT
The respondent contended that the Tribunal should not be satisfied that the applicant’s mother’s diary extract dated 21 July 2011 was a contemporaneous record of her first contact with Centrelink in relation to her intentions to claim carer allowance because:
(a)Centrelink had no written record of contact by the applicant with Centrelink earlier than 13 October 2011; and
(b)it was not in Centrelink’s discretion to retrospectively issue to the applicant a written acknowledgement of any purported contact on a date earlier than 13 October.
The respondent contended that if the Tribunal accepted that the applicant’s mother’s diary extract, dated 21 July 2011, was a contemporaneous record of her first contact with Centrelink in relation to carer allowance, the applicant’s written claim was lodged on 27 October 2011 the period of time between 21 July 2011 and 27 October 2011 is greater than 13 weeks and therefore exceeds the period in the Administration Act providing for the possibility of extension.
The respondent did not dispute the applicant's eligibility for carer allowance.
The respondent accepted that Joyce Bosch’s illness was the result of an acute onset, and therefore contended that the start day of the claim, the day from which Ms Bosch became eligible to receive carer allowance, was 13 October, and in accordance with Schedule 2 of the Administration Act, the carer allowance may be back dated for a period of 12 weeks.
The respondent contended that the decision of the SSAT should be set aside and the applicant should receive carer allowance from 21 July 2011.
CONSIDERATION OF THE ISSUES
In the applicant’s written application for review to the Social Security Tribunal, she advised that she had been caring for her mother since 2 June 2011 and that the delay in lodging her claim was that she had received advice that she should “wait awhile before applying”.
The Tribunal noted the medical report of Dr Pauline Swan amended 21 March 2012, which reflected a positive answer to the question regarding whether the illness was a consequence of an acute onset on 2 June 2011.
The Tribunal accepts that the applicant has been caring for her mother since 2 June 2011, as a consequence of the acute onset of illness.
Whilst the Tribunal accepts the veracity of the applicant's evidence that she attended Centrelink on 21 July 2012, the Tribunal makes no findings as to the content of any discussions which occurred on that day.
The Tribunal notes that as the applicant’s written claim was lodged on 27 October 2011 the period of time between 21 July 2011 and 27 October 2011 is greater than 13 weeks and therefore would have exceeded the period in the Administration Act providing for the possibility of extension.
The Tribunal finds that the applicant’s caring responsibilities arose as a consequence of an acute onset of illness and finds that in accordance with section 13 and clause 17 of Schedule 2 of the Administration Act, that the applicant’s payment may be backdated for a period of up to 12 weeks from the recorded date upon which she first contacted Centrelink, that being 13 October 2011.
The Tribunal finds that the applicant is entitled to be paid carer allowance from 21 July 2011.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that the applicant is to be paid carer allowance from 21 July 2011.
I certify that the preceding 31 paragraphs are a true copy of the reasons for the decision herein of .
.....(Sgd) T Freeman).......................
Dated 20 December 2012
Date of hearing 12 November 2012 Applicant In person
Advocate for the respondent Ms Gallagher Solicitors for the respondent Sparke Helmore
- AGLC
- MAXINE BOSCH and SECRETARY, DEPT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS [2012] AATA 927
- Case
- [2012] AATA 927
- Decision Date
CaseChat Overview and Summary
The key legal issue was whether the Tribunal could accept Bosch's claim that she contacted Centrelink on 21 July 2011 regarding her carer allowance, despite the absence of a written record from Centrelink prior to 13 October 2011. The legislation under consideration included the Social Security Act 1991 and the Social Security (Administration) Act 1999, particularly sections 41 and 42, which outline the general rule for determining the start date of payment for Social Security benefits. Clause 17 of Schedule 2 of the Administration Act was particularly relevant as it allows for the backdating of carer allowance for up to 12 weeks if the illness or disability arose from an acute onset.
The Tribunal accepted Bosch's evidence that she contacted Centrelink on 21 July 2011, even though there was no corresponding written record from Centrelink prior to 13 October 2011. The Tribunal reasoned that the absence of a written record did not necessarily negate the occurrence of the contact. Furthermore, the Tribunal found that Bosch's caring responsibilities arose from an acute onset of her mother's illness on 2 June 2011. The Tribunal concluded that Bosch was entitled to have her carer allowance backdated to 21 July 2011, as she had contacted Centrelink within the allowable period, and the period between her contact and the written claim did not exceed 13 weeks, which is the limit set by clause 17 of Schedule 2 of the Administration Act.
The Tribunal set aside the original decision and substituted its decision that Bosch is to be paid carer allowance from 21 July 2011. This ruling highlights the importance of contemporaneous records but also acknowledges that in the absence of such records, a claimant's testimony can be sufficient to establish the date of initial contact regarding a claim.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The respondent contended that the decision of the SSAT should be set aside and the applicant should receive carer allowance from 21 July 2011.CONSIDERATION OF THE ISSUES In the applicant’s written application for review to the Social Security Tribunal, she advised that she had been caring for her mother since 2 June 2011 and that the delay in lodging her claim was that she had received advice that she should “wait awhile before applying”. The Tribunal noted the medical report of Dr Pauline Swan amended 21 March 2012, which reflected a positive answer to the question regarding whether the illness was a consequence of an acute onset on 2 June 2011. The Tribunal accepts that the applicant has been caring for her mother since 2 June 2011, as a consequence of the acute onset of illness. Whilst the Tribunal accepts the veracity of the applicant's evidence that she attended Centrelink on 21 July 2012, the Tribunal makes no findings as to the content of any discussions which occurred on that day. The Tribunal notes that as the applicant’s written claim was lodged on 27 October 2011 the period of time between 21 July 2011 and 27 October 2011 is greater than 13 weeks and therefore would have exceeded the period in the Administration Act providing for the possibility of extension. The Tribunal finds that the applicant’s caring responsibilities arose as a consequence of an acute onset of illness and finds that in accordance with section 13 and clause 17 of Schedule 2 of the Administration Act, that the applicant’s payment may be backdated for a period of up to 12 weeks from the recorded date upon which she first contacted Centrelink, that being 13 October 2011. The Tribunal finds that the applicant is entitled to be paid carer allowance from 21 July 2011.DECISION The Tribunal sets aside the decision under review and substitutes a decision that the applicant is to be paid carer allowance from 21 July 2011.