MILROY and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2011] AATA 488
•15 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 488
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0900
GENERAL ADMINISTRATIVE DIVISION ) Re CHRISTINE MILROY Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr P Wulf, Member Date15 July 2011
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.................[Sgd].............................
Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Bereavement payment – Applicant failed to claim carer payment – Whether applicant is entitled to receive the bereavement payment – Whether Centrelink owed applicant duty of care – No administrative error – Decision under review affirmed
Social Security Act 1991 (Cth) ss 235, 315
Social Security (Administration) Act 1999 (Cth) ss 8, 11, 17, 21, 37, 67, 68,
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Biddlecombe and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 451
Murphy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 115
Noureddine and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 618
Scott v Secretary, Department of Social Security; Scott and Another v Handley and Another [1999] FCA 1774
Scott and Another v Secretary, Department of Social Security (2000) 65 ALD 79
Topham v Secretary, Department of Employment and Workplace Relations [2007] AATA 1468
REASONS FOR DECISION
15 July 2011 Mr P Wulf, Member 1. The applicant[1], Ms Christine Milroy, seeks the review of a decision made by Centrelink[2] and affirmed by the Social Security Appeals Tribunal (“SSAT”)[3] not to pay her a bereavement payment and/or allowance after the death of her mother. On 10 March 2011, Ms Milroy applied to this Tribunal for a review of the decision.
[1] Exhibit A, T-Document 1/1.
[2] Exhibit A, T-Document 7/52 – 56.
[3] Exhibit A, T-Document 2/2 – 8.
ISSUES
2. The first issue for the Tribunal to consider in this matter is whether Ms Milroy is entitled to any form of bereavement allowance or payment with respect to the passing of her late mother Antonia Chaplin. The second issue that comes from the material provided by Ms Milroy is whether Centrelink owed Ms Milroy a duty of care to provide her information as to all possible payments and/or allowances that she could claim with respect to the care of her mother.
LEGISLATIVE SCHEME
3. Section 235 of the Social Security Act 1991 (Cth) (“the Act”) provides that where a person is receiving carer payment and the person they are caring for dies, they remain qualified for the carer payment throughout the “bereavement period”. The section states:
(1) If:
a)a person is receiving carer payment because he or she ordinarily cares for a care receiver or care receivers; and
b)the person is caring for the care receiver or care receivers or has temporarily ceased to care for the care receiver or care receivers; and
c) the care receiver or any of the care receivers dies; and
d) the care receiver who dies is not the person’s partner; and
e)because of the death, the person would, apart from this subsection, cease to be qualified for the carer payment;
the person remains qualified for the carer payment during the bereavement period as if the death had not occurred.
(1A) If:
a)a person (the carer) is receiving a carer payment only because section 198AA or subsection 198AC(2) applies; and
b) the death occurs of:
i.the person or any of the persons for whom the person would qualify for carer payment as mentioned in paragraph 198AA(1)(b); or
iathe person or any of the persons for whom the carer would qualify for carer payment as mentioned in subsection 198AA(4) or (5); or
ii.the person or any of the persons for whom the care mentioned in paragraph 198AC(2)(c) is assumed to be provided; and
c) the person who dies is not the carer’s partner;
the carer remains qualified for carer payment during the bereavement period as if the death had not occurred.
…
3)A person to whom subsection (1) applies may, by written notice to the Secretary, choose not to receive payments under this Subdivision and to receive instead any payments to which the person would be otherwise entitled.
4) If a person makes an election under subsection (3):
a)this Act, or Part III or IIIA of the Veterans’ Entitlements Act, has effect accordingly; and
b)the person may not withdraw the election after the Department has taken all the action required to give effect to the election.
4. The “bereavement period” is the 14 week period which starts on the day on which the person dies (s 21(2)). This carer payment that is received during this 14 week period is referred to as a “bereavement payment”.
5. Section 315 of the Act concerns the qualification for Bereavement Allowance. The section states:
a) A person is qualified for a bereavement allowance on a day if:
(i) the person:
i. was a member of a couple; and
ii.stopped being a member of a couple because the person’s partner died; and
b) the person is not a member of a couple; and
c) the person is not qualified for a parenting payment; and
d) at least one of the following conditions is satisfied:
i.when the person’s partner died, both the person and the person’s partner were Australian residents;
ii.the person has been an Australian resident and in Australia for a period of, or periods totalling, 104 weeks; or
iiiathe person has a qualifying residence exemption for a bereavement allowance;
iv. the person is a woman:
(A)to whom a wife pension, or a partner service pension under Part III of the Veterans’ Entitlements Act, was payable immediately before her partner died; and
(B) who was not in Australia when her partner died; and
e) the day occurs:
(i)if the person is a man, or a woman who was not pregnant when her partner died—in the period of 14 weeks starting on the day of the death of the partner; or
(ii) if the person is a woman who was pregnant when her partner died:
(A)in the period of 14 weeks starting on the day of the death of the partner; or
(B)in the period starting on the day of the death of the partner and ending when the child is born or the woman otherwise stops being pregnant;
whichever ends later.
THE EVIDENCE
6. The evidence before the Tribunal was comprised of:
(a)The “T-Documents” lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”);[4]
(b)The applicant’s Statement of Facts and Contentions contained within her appeal letter dated 10 March 2011;[5] and
(c)The respondent’s Statement of Facts and Contentions dated 16 May 2011.[6]
[4] Exhibit A, T-Document 1 – 8/1 – 57.
[5] Exhibit B.
[6] Exhibit C.
ANALYSIS
7. It would appear from the written material provided by Ms Milroy that she provided care to her mother. Unfortunately, her mother has passed away.
8. On 23 October 2007, Ms Milroy lodged a claim for a Carer Allowance for her mother. At this time, Ms Milroy was on a disability pension. However, importantly, Ms Milroy did not make a claim for Carer Payment. An assessment of “the claim for Carer Allowance and/or Carer Payment”[7] shows that at Question 27 of that claim[8], Ms Milroy ticked “no” as to whether she wished to claim Carer Payment in addition to Carer Allowance. This is clearly detrimental to Ms Milroy’s appeal.
[7] Exhibit A, T-Document 1 – 4/20 – 39.
[8] Exhibit A, T-Document 1 – 4/32.
9. Ms Milroy was granted Carer Allowance, but as she did not apply for Carer Payment, she did not receive Carer Payment.
10. Based on Ms Milroy’s submissions, it then appears that she did not enquire about the age pension. However, it is clear that Ms Milroy signed a claim form requesting she be paid the age pension on 29 June 2010,[9] this being a transfer from the disability pension to the age pension.
[9] Exhibit A, T-Document 1 – 5/40 – 49.
11. With respect to s 235 of the Act, the only way that Ms Milroy could receive a bereavement payment is if she was in receipt of Carer Payment. Unfortunately, as highlighted above, Ms Milroy did not seek Carer Payment when submitting her claim for Carer Allowance in 2007.
12. Further, when reading s 315 of the Act, it is clear that to qualify for Bereavement Allowance, Ms Milroy must be a member of a couple. Quite obviously, Ms Milroy and her mother were not a couple.
13. Therefore Ms Milroy cannot legally be paid a bereavement payment or Bereavement Allowance.
CENTRELINK’S DUTY OF CARE
14. The real issue, as I understand from Ms Milroy’s submission, is her belief that she was incorrectly advised by Centrelink and/or not advised properly by Centrelink that she could have been eligible for Carer Payment. The consequence of not receiving that payment was that she then was not entitled to a bereavement payment. Ms Milroy also appears to argue that Centrelink had a duty to advise her of these matters.
15. Centrelink administers the delivery of social security payments, services and customer information on behalf of the respondent. Importantly, it does not provide advice to its customers regarding their legal entitlements to a social security payment. Section 8 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) provides:
8 Principles of administration
In administering the social security law, the Secretary is to have regard to:
a) the desirability of achieving the following results:
i.the ready availability to members of the public of advice and information services relating to income support generally and to the social security payments that are available;
ii.the ready availability of publications containing clear statements about income support entitlements and procedural requirements;
iii.the delivery of services under the law in a fair, courteous, prompt and cost-efficient manner;
iv.the development of a process of monitoring and evaluating delivery of programs with an emphasis on the impact of programs on social security recipients;
v.the establishment of procedures to ensure that abuses of the social security system are minimised; and
b) the special needs of disadvantaged groups in the community; and
c)the need to be responsive to the interests of the Aboriginal and Torres Strait Islander communities and to cultural and linguistic diversity; and
d)the importance of the system of review of decisions under the social security law; and
e)the need to ensure that social security recipients have adequate information regarding the system of review of decisions under the social security law; and
f)the need to apply government policy in accordance with the law and with due regard to relevant decisions of the Administrative Appeals Tribunal and the Social Security Appeals Tribunal.
16. It is apparent that the provisions in s 8 of the Administration Act only require Centrelink to provide general advice and information to the public about the availability of income support and social security payments. Centrelink is not required to advise claimants about their legal rights to any particular social security payment or the rate of payment. Moreover, Centrelink is not required to advise a client that they must fill in any additional forms. This is clear from s 11(1) of the Administration Act, which provides:
11 General rule
(1)Subject to subsection (2) and Subdivision B, a person who wants to be granted:
(a) a social security payment; or
(b) a concession card;
must make a claim for the payment or card in accordance with this Division.
17. I note other decisions of the Tribunal[10] that specifically referred to Centrelink’s limited obligations under the Act.[11] Thoses decision have followed previous Federal Court.[12]
[10] Biddlecombe and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 451; Noureddine and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 618; Topham v Secretary, Department of Employment and Workplace Relations [2007] AATA 1468.
[11] Murphy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 115.
[12] Scott v Secretary, Department of Social Security; Scott and Another v Handley and Another [1999] FCA 1774.
18. The decision of Scott v Secretary, Department of Social Security[13] is also of importance. This was a decision of the Full Court of the Federal Court where the majority (Beaumont and French JJ) upheld the judgment at first instance where Heerey J held that “...there was no general common law duty of care to advise the appellants of benefits that might potentially be available under the Act” [at 19-20]. A subsequent application for special leave to appeal to the High Court was refused.
[13](2000) 65 ALD 79.
19. These cases highlight the requirements of Centrelink. They demonstrate that Centrelink is not responsible for informing any member of the public at large that he or she may be entitled to a social security payment, nor do they require Centrelink to correct errors made by a claimant. While in this matter it would appear that Ms Milroy could have received the Carer Payment, and therefore a bereavement payment following the death of her mother, the onus was on Ms Milroy to make a claim and fill in the relevant parts of the form correctly, specifically Question 27. Only once forms have been completed and returned does Centrelink become responsible for correctly processing a claim.
20. Centrelink must determine that a claim for a social security payment should be granted if it is satisfied that the claimant is qualified for the social security payment and that the social security payment is payable (s 37(1) of the Administration Act). To make those assessments, Centrelink relies on information provided by a claimant. In fact, the Secretary may require, by notice given in writing to a claimant, that the person notify Centrelink of any change in circumstances which might result in that person either becoming ineligible for the payment or entitled to a different rate of payment (s 67 and s 68 of the Administration Act). A failure to notify Centrelink of a change in circumstances which would result in either ineligibility or a varied payment might result in a person who continues to receive a social security payment becoming liable to repay a debt to the Commonwealth. In other words, it is not Centrelink's responsibility to ensure that a claimant is eligible for the payment. That is left to the claimant.
21. Therefore, Ms Milroy’s submission that Centrelink had a duty of care to inform her of her potential eligibility for Carer Payment is incorrect. Centrelink had no such duty.
DETERMINATION
22. The Tribunal finds that as Ms Milroy was not receiving Carer Payment at the time of her mother’s death, she was not entitled to receive a bereavement payment. She is also not entitled to Bereavement Allowance.
23. The Tribunal affirms the decision under review.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mr P Wulf, Member
Signed: .........................[Sgd]....................................................
Research AssociateHearing on the papers
Date of Decision 15 July 2011
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