MAXINE JOAN RITCHIE and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

[2009] AATA 722

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL        )

)         No: 2008/6186

General Administrative Division           )

Re: Maxine Ritchie
Applicant

And: Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
Respondent

DIRECTION

TRIBUNAL:             Mr J G Short (Member)

DATE:                      23 September 2009

PLACE:                   Adelaide

The Tribunal directs the Registrar, pursuant to s 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application by deleting the word “Centrelink” at the beginning of paragraph 21 and replacing it with the words “The SSAT”.

....................[Signed]…....................
  J G SHORT
  (Member)

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 722

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/6186

GENERAL ADMINISTRATIVE DIVISION		)
Re		MAXINE JOAN RITCHIE

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date22 September 2009

PlaceAdelaide

Decision The Tribunal affirms the decision of the Social Security Appeals Tribunal dated 27 November 2008 (which set aside the decision of a Centrelink officer made on 20 March 2008) and which substituted a decision that in the special circumstances of the case, Ms Ritchie is taken to have made a claim for Carer Allowance on 5 March 2008.  The decision went on to determine that the date of effect of this decision is 28 October 2008 and therefore no entitlement to arrears flows from the decision.

..............................................

J G SHORT
  (Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Carer Allowance – claim deemed to have been made on 5 March 2008 – appeal lodged more than 13 weeks after notification of decision – date of effect of Social Security Appeals Tribunal decision is date on which appeal lodged – no arrears payable – no jurisdiction to determine application for Act of Grace payment or payment under Compensation for Detriment caused by Defective Administration scheme – decision affirmed

Social Security (Administration) Act 1999 ss 13, 152(4)

Financial Management and Accountability Act 1997 s 33

Re Secretary, Department of Employment and Workplace Relations and Mitchell [2006] AATA 804

REASONS FOR DECISION

22 September 2009   Mr J G Short (Member)  

1.      The applicant, Ms Maxine Ritchie, said that in November 2007 her friend, Alison Nelson, contacted Centrelink with a general enquiry concerning entitlement to Carer Allowance.  Ms Ritchie said that following that telephone conversation, Ms Nelson advised her that Carer Allowance was not payable to a person, such as Ms Ritchie, who was in full-time employment. 

2.      Ms Ritchie considered that she had suffered a financial detriment as a result of incorrect advice provided by Centrelink.  She asked this Tribunal to direct a payment to her by way of compensation under the Compensation for Detriment caused by Defective Administration scheme (CDDA). 

3.      This Tribunal does not have jurisdiction to direct payments under the CDDA scheme.  In Re Secretary, Department of Employment and Workplace Relations and Mitchell [2006] AATA 804, Deputy President DG Jarvis determined that this Tribunal does not have jurisdiction to hear matters related to an Act of Grace/CDDA payment. At paragraph 63 of that decision, Deputy President Jarvis said that:

“… I think that consideration should be given to making some payment to the respondent pursuant to the Compensation for Detriment caused by Defective Administration Scheme, or pursuant to s 33 of the Financial Management and Accountability Act 1997 (Cth), which authorises the Minister for Finance and Administration to make an act of grace payment. These are, however, matters outside the jurisdiction of this Tribunal.”

4.      Ms Ritchie was also concerned about the date of effect of the Social Security Appeals Tribunal (the SSAT) decision to treat Ms Ritchie’s claim for Carer Allowance as having been made on the date Ms Ritchie first contacted Centrelink in 2008 in relation to a claim for Carer Allowance, that is 5 March 2008.

5.      The SSAT had determined that as her appeal to that Tribunal was not lodged until 28 October 2008, that is more than 13 weeks after the notification of the Authorised Review Officer’s decision, the earliest date of effect of the favourable SSAT decision was the date the appeal was lodged, that is 28 October 2008.  In effect, this decision deprived Ms Ritchie of any payment of arrears.

issues

6.      The issues for the Tribunal are:

·Whether this Tribunal has jurisdiction to determine claims for payment of compensation under either the Financial Management and Accountability Act 1997 or the CDDA Scheme and if so, whether any such payment could be made.

·Whether the SSAT and this Tribunal has power to direct a date of effect of a favourable decision be any time prior to the date of lodgement of an appeal to the SSAT.

evidence of ms ritchie

7.      In relation to compensation, Ms Ritchie told the Tribunal that in November 2007 her then friend, Sally Murphy, was being cared for by another friend, Rose Nelson.  She said that in about November 2007 Rose Nelson became ill and Ms Ritchie made a decision to act as Ms Murphy’s carer.  She said that in this context, Ms Nelson’s daughter-in-law, and her friend, Alison Nelson, telephoned Centrelink to obtain advice concerning Carer Allowance.  Ms Ritchie said that no names were mentioned.  She said that she was in the home when Ms Nelson made the phone call and heard parts of Ms Nelson’s side of the conversation.  She said that following the conversation, Alison Nelson said that she had received advice from Centrelink to the effect that Carer Allowance could not be paid to a person who was in full-time employment.  This advice proved to be incorrect and on this basis, Ms Ritchie has sought compensation for financial detriment caused by the provision of inaccurate advice.

8.      As mentioned, I do not have jurisdiction to direct that a payment be made under either compensation scheme.  I may recommend a payment be made.  However, in the circumstances of this case, including the statement that Ms Ritchie was not the person who made the alleged enquiry; the suggested enquiry was of a general nature; Ms Alison Nelson has told Ms Ritchie that she cannot recall making the telephone call and the fact that Centrelink do not have a record of any such call being made, I determine that it is not appropriate to make a recommendation for payment of compensation.

9.      In relation to Ms Ritchie’s 2008 claim for Carer Allowance, Ms Ritchie said that the SSAT’s summary of information provided by her at the SSAT hearing on 27 November 2008 and found at paragraph 9 of the SSAT’s reasons for decision (T2), was generally accurate.  This summary reads as follows:

“…

·     Ms Ritchie told the Tribunal that she had first contacted Centrelink on 15 August 2007 regarding a claim for carer allowance and had been told that it was not possible to be paid the allowance while working full-time.  Ms Ritchie later told the Tribunal that she had not personally made this contact.

·     Ms Ritchie said that she was very angry regarding this incorrect advice.  The Tribunal told Ms Ritchie that since the first contact in August had not been recorded and that since no actual decision had been made that matter was not within its jurisdiction to review.

·     The Tribunal drew Ms Ritchie’s attention to the advice in the authorised review officer’s letter dated 15 May 2008, that she seek redress through the compensation for detriment caused by defective administration (CDDA) scheme.

·     Ms Ritchie said that she contacted Centrelink again on 5 March 2008 regarding carer allowance and was sent a claim form by mail.  She said that she had posted the form to Centrelink on the following Monday and that it was not her fault if Australia Post took too long to deliver the letter.

·     Ms Ritchie explained that her doctor had delayed filling in the medical report and that this was the reason she had delayed posting the forms back.  She said that it generally took up to three weeks to get an appointment and that she had dropped the forms in to the surgery and given them to the receptionist.  She was unable to get an earlier appointment.  The doctor had promised to fill in the forms over the weekend.

·     She said that when she came back on the following Monday (17 March 2008) he had not completed the forms and did them on the spot.  Ms Ritchie said that she put the forms immediately into the post.  The medical report was posted separately.

·     Ms Ritchie told the Tribunal about the circumstances of the caree, Ms Sally Murphy.

·     Ms Ritchie said that she was no longer in receipt of carer allowance and had withdrawn from providing care to Ms Murphy due to the problems the latter had with alcohol and other matters.

·     The Tribunal asked Ms Ritchie why she had chosen to post rather than deliver the forms and Ms Ritchie replied that she suffered from arthritis, back problems and problems with her knees and had difficulty walking without her walking frame.  Due to this she would not have been able to stand in the queue for the lengthy period often required and additionally would have been unable to manage loading and unloading her walker without assistance.  Ms Ritchie showed several medical certificates to support her evidence.

·     Ms Ritchie also noted that the address of the office to which the forms must be sent was different to her local Centrelink centre and given the need to return the forms in time she thought the post would be better.

·     The Tribunal drew Ms Ritchie’s attention to the Centrelink letters of 5 March 2008 and in particular the advice that the claim was to be returned by 19 March 2008.  Ms Ritchie denied that she had been told that there was a 14-day lodgement period and she said that this was not so with other Centrelink matters.

·     Ms Ritchie said that she had been working as a carer at the time assisting elderly people with various home care services, e.g., shopping.  She said that she found it very difficult to continue with the work and initially went part-time after March, but in May, gave up work altogether as her condition worsened.”

10.     Ms Ritchie said that the only incorrect information contained in the SSAT’s summary of information was that in the first paragraph.  Ms Ritchie said that Centrelink had first been contacted in relation to a claim for Carer Allowance in November 2007 rather than the date recorded in the SSAT’s reasons for decision, 15 August 2007.

11.     Ms Ritchie also explained that at the time of the general enquiry, she had been under a great deal of stress.  Her friend, Rose Nelson, had become ill and Sally Murphy’s health was deteriorating.  She also said that the SSAT had recorded her as stating that she had been “very angry” regarding incorrect advice.  She said it was more appropriate to say that she was annoyed.

12.     Ms Ritchie said that in relation to a claim for Carer Allowance, she had contacted Centrelink on 5 March 2008 to make an enquiry.  She received an application form by post and had posted the completed application form on Monday 17 March 2008 and thought that it should have been received by Centrelink by the due date, that is 19 March 2008.  Centrelink records indicate that the form was received on 20 March 2008, that is one day beyond the due date. 

13.     Ms Ritchie said that she had cared for Ms Murphy from about 25 November 2007 until June 2008.  She ceased caring for Ms Murphy in June 2008 because she too had become ill and her relationship with Ms Murphy had broken down.

14.     Ms Ritchie said that she could not recall receiving two letters from Centrelink dated 5 March 2008, the second of which is alleged to have contained specific advice in relation to periods within which appeals should be lodged. 

15.     Ms Ritchie was referred to the transcript of a letter dated 5 March 2008 (T5/32).  This letter stated that “To be paid from the earliest date possible, you must return your claim on or before 19 March 2008”.  The letter also went on to say:

“… If you do not agree with a decision Centrelink has made contact us so we can explain the decision and change it if appropriate (this step is optional).  Contact us and ask for an independent Authorised Review Officer to look at your case.  Go to the Social Security Appeals Tribunal if you disagree with the Authorised Review Officer’s decision.  Go to the Administrative Appeals Tribunal if you disagree with the Social Security Appeals Tribunal’s decision.  All of the above are free of charge.  Important:  If you wish to appeal a decision, contact Centrelink as soon as possible.  If you do not ask for a review within 13 weeks of being notified of the decision, you may not receive your full entitlement if the decision is changed. …”

16.     Ms Ritchie said that she could not remember receiving this letter.  However, she said that this may have been due to the chaos she was experiencing in Ms Murphy’s house.  She said that if she had read the letter, given the circumstances, she probably would not have taken it in.

17.     Ms Ritchie was also referred to a letter from Centrelink addressed to herself and dated 15 May 2008 (T3/13).  This letter reads in part as follows:

“If you do not request a review within 13 weeks of receiving this letter and the decision is changed, you might not receive your full entitlement.  There is no time limit if you are asking for a review of a decision about money you owe to Centrelink, however you may have to pay back the money while the decision is being considered.”

18.     Ms Ritchie said that she did receive this letter, but she simply did not take in the relevant portion of the letter relating to time within which to lodge an appeal.  Ms Ritchie said that not only had her friends become seriously ill, but she had also been the victim of a road rage incident and had subsequently been diagnosed with post-traumatic stress disorder and that she was likely to have been suffering the symptoms of that disorder in about March 2008.

consideration

19.     I repeat, I do not have jurisdiction to direct payments of compensation under the CDDA scheme or, under s 33 of the Financial Management and Accountability Act 1997.  I also do not consider it appropriate in the circumstances of this case to recommend a payment under either of those schemes.

20.     The first issue considered by the SSAT was whether Ms Ritchie’s claim for payment of Carer Allowance should be backdated to 5 March 2008, that is the date of Ms Ritchie’s first contact with Centrelink in 2008 regarding such a claim.

21. Centrelink determined that special circumstances existed in this case which would allow a determination under s 13(1) of the Social Security (Administration) Act 1999 (the Administration Act), particularly ss 13(2) and (3A) to deem her claim to have been made on the date of first contact, that is 5 March 2008.

22.     The respondent did not challenge this part of the SSAT’s decision and the Tribunal, having heard evidence from Ms Ritchie concerning her circumstances at around the time of lodging her formal claim in March 2008, affirms that part of the SSAT’s decision.

23. The second part of the SSAT ‘s decision concerned the date of effect of a favourable SSAT decision. Section 152(4) of the Administration Act reads as follows:

“152  Date of effect of SSAT decisions (other than Activity Agreement decisions)

…

(4)      If:

(a)a person is given written notice of a decision under the social security law; and

(b)the person applies to the SSAT more than 13 weeks after the notice was given for review of the decision; and

(c)the SSAT varies the decision or sets the decision aside and substitutes a new decision; and

(d)      the effect of the decision of the SSAT is:

(i)to grant the person’s claim for a social security payment or a concession card; or

(ii)to direct the making of a payment of a social security payment to the person or the issue of a concession card to the person, as the case may be; or

(iii)to increase the rate of the person’s social security payment;

the social security law has effect as if the decision under review had taken effect on the day on which the application was made to the SSAT for review of that decision.”

24.     This section is to the effect that if a person is advised of a decision of an Authorised Review Officer and fails to appeal that decision within 13 weeks of notification, then the date of effect of any favourable decision (such as the SSAT’s decision to deem the date of Ms Ritchie’s claim to be the date of first contact (5 March 2008) is to be “the day on which the application was made to the SSAT for review of that decision”.

25.     Centrelink’s letter dated 15 May 2008 is a letter from the Authorised Review Officer indicating that Ms Ritchie’s appeal against the decision of the Authorised Review Officer had been unsuccessful.  That same letter provided advice that any request for review of that decision should be lodged within 13 weeks of receipt of the letter.  In this case, I find that Ms Ritchie did not lodge her appeal to the SSAT until 28 October 2008, that is well beyond 13 weeks from the date of notification, 15 May 2008.

26. In these circumstances, s 152(4) of the Administration Act directs that the date of effect of a favourable decision is to be the date of lodgement of an appeal to the SSAT, in this case 28 October 2008.

27.     

The Tribunal does not have power to direct a date of effect earlier than the date of lodgement of an appeal to the SSAT unless that appeal is lodged within 13 weeks.  It was not in this case and consequently the Tribunal affirms the decision under review.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)

Signed:         ..............J Coulthard........................................
  Associate

Date of Hearing  21 August 2009
Date of Decision  22 September 2009
Advocate for the Applicant       Self-represented

Advocate for the Respondent   Ms L Giaretto
  Centrelink Legal Services & Procurement      Branch