McDermott and Secretary, Department of Family and Community Services

[2005] AATA 135

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 135

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1150

GENERAL ADMINISTRATIVE  DIVISION		)
Re		BARRY MICHAEL McDERMOTT

Applicant

And SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date15 February 2005

PlaceSydney

Decision The decision under review is affirmed.

[Sgd]   Ms G Ettinger
  Senior Member

catchwords

Social Security – Carer Pension – whether there is discretion to backdate payments – decision under review affirmed.

legislation

Social Security Act 1991 – section 954(1)

Social Security (Administration) Act 1999 – sections 36(1), 41, 107(3), 129, 236 and 237

REASONS FOR DECISION

15 February 2005 Ms G Ettinger, Senior Member     

1.      Mr Barry Michael McDermott, the Applicant in these proceedings applied for review of a decision of the Social Security Appeals Tribunal dated 29 July 2004 (T2), which had affirmed the decision of the Authorised Review Officer dated 7 July 2004 (T25).  The Authorised Review Officer had set aside the decision of the Secretary, Department of Family and Community Services (“the Department”) (T14, T15) and held that Mr McDermott was qualified to receive Carer Allowance in respect of Ms Doreen Balind on and from 18 June 2004.

2.      Mr McDermott represented himself at the Tribunal, and the Department was represented by Mr G Richardson.

ISSUE BEFORE THE TRIBUNAL

3.      Mr McDermott has been receiving Carer Allowance in respect of the care he gives Ms Balind since 18 June 2004, and the only issue before me, was whether he was qualified to receive it for any period before that date.

THE LEGISLATION

4.      The relevant legislation in this matter is the Social Security Act 1991 (“the Social Security Act”) and the Social Security (Administration) Act 1999 (“the Administration Act”).

THE EVIDENCE

5.      Mr McDermott gave oral evidence before the Tribunal. He told me that he had been asked by friends to help Ms Balind, and had commenced doing so on 16 September 2003. He said that she had been abandoned by her family, was on Valium at the time, sitting and crying in the street, and was depressed and like a “lost person”. Mr McDermott told me that he first took her home to his place at 25 Anzac Avenue, Junee but that she was unhappy there, and tended to leave, and head for her home which is a Housing Commission place, at 4/2 Crawley St, Junee. 

6.      Mr McDermott said that Ms Balind cannot be left alone, and goes with him wherever he goes. He told me that Ms Balind has tried to commit suicide, does not trust anyone, and has mood swings. He said that since he has been caring for her, she is much improved.

7.      Mr McDermott, who receives the Age Pension, said that he sought the Carer Allowance and accordingly on 5 January 2004, he attended at Centrelink with documents, and saw Chris O’Brien. He said that he left his documents with Mr O’Brien.  Mr McDermott said that he understood when Mr O’Brien told him matters were “finalised”, this meant he would receive Carer Allowance.  In that regard, I noted that Centrelink sent Mr McDermott forms to fill in with regard to an application for Carer Allowance on two occasions after the meeting with Mr O’Brien, and that Mr McDermott eventually lodged the application for Carer Allowance on 17 February 2004, (T11). The evidence Mr McDermott gave with regard to the lodging of  applications was not clear, although he agreed in cross-examination he had only lodged one application, and when shown a signature on T11/46, the application dated 17 February 2004, agreed that it was his.

8.      Centrelink’s evidence is that it sent Mr McDermott a letter dated 23 February 2004 rejecting the claim for Carer Allowance he lodged on 17 February 2004. Mr McDermott has not resiled from the evidence given previously, that he did not receive the letter Centrelink sent on 23 February 2004, (T14,T15), rejecting his claim. He gave evidence that some mail had, from time to time, been removed from his letter box, he claimed by school children, and later found opened some distance from his place.

9.      Mr McDermott was aware that the reason his claim had at first been rejected, was because he had given his address as 25 Anzac Ave, and had not demonstrated to Centrelink that he actually lived at Ms Balind’s place.  His explanation was that he thought one was not permitted to have more than one address, and notwithstanding he lives at Ms Balind’s place, has kept 25 Anzac Ave. He said that  he returns there at least weekly to check on things to collect mail, so gave that as his address.

10.     Mr McDermott also gave evidence that a Centrelink staff member had telephoned Ms Balind on 17 February 2004, and that, on 23 February 2004, he had complained about that telephone call to the manager, Ms S Loveday, by telephone. Mr McDermott said that Ms Loveday had told him she had confidence in her staff, but that they had not discussed any decision about his application for Carer Allowance on that day.

11.     The Applicant’s evidence regarding when he first knew about the refusal of his application for Carer Allowance was not clear. One possibility related to a debt collection letter for his credit card (Exhibit A1, dated 28 April 2004), presumably received by early May, which he said he was planning to pay off with the arrears of Carer Allowance he thought he would receive.  Even then, after receipt of the debt collection letter, when he knew he had not received the Carer Allowance, he did not apply for a review of the refusal until 18 June 2004, some six weeks later. Mr McDermott said that he was a “shocking book keeper”, and thought, in reliance on Mr O’Brien’s statements, that he had been receiving the money (the Carer Allowance). The Carer Allowance did subsequently go into the same account as his pension money. Essentially, he said that he was caring for Ms Balind, that was well known to all in the small community, and he had understood Mr O’Brien to have told him all would be taken care of.

SUBMISSIONS AND CONCLUSIONS

12.     In order to make the correct and preferable decision regarding whether Mr McDermott was qualified to receive arrears of Carer Allowance prior to the grant of the Carer Allowance on 18 June 2004, in respect of Ms Balind, I had to take into account the evidence, both written and oral, the submissions and relevant legislation.

13.     I was mindful of Mr McDermott’s submissions that everyone in a small town such as Junee was aware of Ms Balind’s needs, and that notwithstanding the Department did not, until 5 February 2004, have the medical report regarding Ms Balind required to satisfy it regarding her condition, Carer Allowance should have been paid from the time of his meeting with Mr O’Brien on 5 January 2004, or indeed from the time he has been assisting Ms Balind which commenced on 16 September 2003.

14.     I was satisfied that Mr McDermott is taking care of Ms Balind, living at her place, and that he was not claiming Carer Allowance in breach of any legislation.  

15. I was also satisfied from the evidence that Mr McDermott did not make an application for Carer Allowance when he gave Mr O’Brien documents on 5 January 2004, and that accordingly no decision could have been made in regard to the granting of Carer Allowance until an application was made. I was satisfied from the evidence that Centrelink then provided claim forms for Mr McDermott on two occasions, and that he filled in, and lodged an application on 17 February 2004. Section 954(1) of the Social Security Act deals with qualification for Carer Allowance and follows as relevant.

16. Section 954(1) of the Social Security Act provides as follows:

“Qualification for carer allowance—caring for a disabled adult in

a private home of both the adult and the carer

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.”

17. I was satisfied also that because Mr McDermott filled in the claim form at T11, dated 17 February 2004, giving his address as different from that of Ms Balind, the Departmental officer making the initial decision on 23 February 2004 could only assume that he was not living in the same premises as Ms Balind, and that he was therefore obliged pursuant to section 954(1) of the Social Security Act to refuse the application for Carer Allowance. This was further confirmed by a Departmental officer’s telephone call to Ms Balind on 17 February 2004. To be eligible for Carer Allowance, the Applicant had to comply with the conditions in section 954(1) of the Social Security Act which include the fact that the carer and person receiving care, must reside together.  As that did not appear to be so from the application form, the result was the refusal of Carer Allowance on 23 February 2994.

18. I was satisfied from the evidence, that having received an application, the Department made a decision on 23 February 2004, pursuant to its responsibilities under section 36(1) of the Administration Act, and that the decision was made in writing pursuant to section 236 of the Administration Act.  I was satisfied also that the decision of the Department was “given” to Mr McDermott within the terms of section 237 of the Administration Act, in that it was sent by prepaid post to the postal address supplied by Mr McDermott as his home and postal address, that is 25 Anzac Ave, Junee. Notwithstanding his evidence that he did not receive the letter rejecting his application for Carer Allowance, I was satisfied that the Department had discharged its duty to inform Mr McDermott of its decision, and that the contrary had not been proven. For the sake of completeness, I noted also that Mr McDermott’s  address at 25 Anzac Ave  was recorded in the application form of 17 February 2004, and the Health Professional Assessment form received by Centrelink on 5 February 2004. 

19. As a person affected by a decision of the Department, Mr McDermott was qualified to apply for review pursuant to section 129 of the Administration Act. 

20. The Authorised Review Officer then set aside that decision on 7 July 2004, being satisfied that Mr McDermott resided with Ms Balind, and substituted a decision that Mr McDermott was qualified for Carer Allowance, and that it was payable from 18 June 2004, the day Mr McDermott inquired, and requested the review. I have noted that the Social Security Appeals Tribunal affirmed the decision of the Authorised Review Officer to commence Carer Allowance from 18 June 2004. the date of commencement of Mr McDermott’s Carer Allowance was based on the date on which he applied, and the application of section 107(3) of the Administration Act which provides as follows:

“s 107
…

(3)      If:

(a) a decision (the original decision) is made rejecting a person's claim for a social security payment or concession card; and

(b)       the person is given a notice informing him or her 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) a decision that the claim be granted is made as a result of the application for review;

the determination embodying the last-mentioned decision takes effect on the day on which the application for review was made.”

21. Pursuant to section 107(3) of the Administration Act, the date of effect of the new decision was the day on which the application for review was made, and that was, given the evidence before me, 18 June 2004.  There is a 13 week window within which arrears may be claimed, but unfortunately Mr McDermott did not apply until considerably later.

22. I therefore considered whether there is discretion for me to deal with this matter further, and found that, having also considered section 41 of the Administration Act, I found I not have that discretion. In summary, Mr McDermott was given notice of the refusal decision on 23 February 2004, at law, even though he said he did not receive the notice.  I accepted he did not apply for review until 18 June 2004, and it is from that date that his Carer Allowance must start. 

23. Section 41 of the Administration Act provides as follows:

“Commencement

(1) Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person's start day in relation to the social security payment.

(2) Unless another provision of the social security law provides otherwise, a concession card takes effect on the person's start day in relation to the card.”

24. I noted that section 41 has application in certain cases, but that in this case, section 107(3) of the Administration Act overrides that, and I have no discretion to extend the period of Carer Allowance.

25.     Therefore the decision of the Authorised Review Officer and the Social Security Appeals Tribunal must be affirmed.

DECISION

26.     The decision under review is affirmed.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

Signed:         Neil Glaser
  Associate

Date/s of Hearing  25 January 2005
Date of Decision  15 February 2005
Applicant  Self Represented
Advocate for the Respondent   Mr G Richardson