Mitrevski and Secretary, Department of Families, Community Services and Indigenous Affairs

[2007] AATA 1040

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1040

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2006/1083

GENERAL ADMINISTRATIVE DIVISION		)
Re		ELIZABETH MITREVSKI

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Regina Perton

Date2 February 2007

PlaceMelbourne

Decision The Tribunal varies the decision under review and directs that payment of carer allowance be backdated to 25 May 2006 rather than 26 May 2006.

(sgd) Regina Perton

Member

CATCHWORDS

Social Security - carer allowance - whether backdating possible for more than 12 weeks from claim date - decision varied

Social Security Act 1991 s 23

Social Security (Administration) Act 1999 ss 11(1), 13, 16, 41, 42, cl 3, 16 of Schedule 2

REASONS FOR DECISION

2 February 2007 Regina Perton       

1.      Elizabeth Mitrevski is the mother of Kayla Mitrevski-Stefanovski who was born on 25 May 2002.  Kayla suffers from severe speech and language delay and global developmental delay.  On 17 August 2006, Miss Mitrevski contacted Centrelink seeking carer allowance.  Centrelink is the service delivery agency for the respondent.  On 21 August 2006, Miss Mitrevski lodged a claim form with Centrelink.  Centrelink deemed the claim to have been lodged on 17 August 2006, the date on which Miss Mitrevski first contacted Centrelink about carer allowance.   Accompanying the claim form was a paediatrician’s report dated 21 August 2006 indicating that Kayla’s disability had commenced more than 12 weeks earlier and was expected to continue for at least another 12 months.

2.      Miss Mitrevski was granted carer allowance.  Payment was backdated to 26 May 2006 which is 12 weeks prior to 17 August 2006.  Miss Mitrevski believes that the payment should be backdated further.  Therefore, she sought an internal review of the decision.  An authorised review officer affirmed the decision.  Miss Mitrevski applied to the Social Security Appeals Tribunal (the SSAT) for review of the decision.  The SSAT determined that under legislation in force since 1 July 2006, the maximum period that carer allowance can be backdated is 12 weeks and affirmed the decision.

3.      Miss Mitrevski applied to the Tribunal for review of the SSAT decision on 14 November 2006.  She believes that carer allowance should be further backdated as there is medical opinion that Kayla has suffered from the disability for more than 12 weeks before the claim was lodged.  She points out that a delay in lodging the form was due to the time she had to wait for an appointment in the public health system.  Centrelink and the SSAT indicated that there is no discretion in the legislation to further extend the commencement date for payment of carer allowance. 

4.      The issue for the Tribunal is whether it is possible to backdate carer allowance for more than 12 weeks from the date of claim.

Applicant’s Evidence

5.      The Tribunal had before it the medical reports and letters Miss Mitrevski had provided to Centrelink in relation to Kayla’s condition.  Miss Mitrevski also gave oral evidence to the Tribunal by telephone.  She said that she was not aware that Kayla had a disability until she was seen by a child and maternal health nurse in May 2006.   The child-care centre that Kayla had attended since she was six months old had either not recognised the problem or not informed Miss Mitrevski of it.  Due to delays in the public health system, Kayla was not able to obtain an appointment with a speech therapist at Sunshine Hospital until late August 2006.  As she did not have a confirmed diagnosis of Kayla’s condition, she did not lodge a claim until August 2006.  Miss Mitrevski said that she had been under the impression that she could not lodge a claim until there was written medical confirmation regarding Kayla’s disability. 

6.      Miss Mitrevski believes it is unfair that she cannot have carer allowance backdated further than 12 weeks.  She said that the medical report dated 21 August 2006 indicated that Kayla had suffered from the disability for more than 12 months.  Miss Mitrevski stated that she should not be subject to the changed rules that applied to claims lodged after 1 July 2006 given that the delay in making the claim was due to factors outside her control.  The nurse telephoned Centrelink in early May 2006 about carer allowance while Miss Mitrevski was there.  The nurse was told that carer allowance could be backdated 12 months from the date of claim.  Miss Mitrevski believes that she also contacted Centrelink around that time (May 2006) about carer allowance, although there is no record of that contact in Centrelink’s records.  She is of the view that Centrelink should have informed her and the nurse of the upcoming changes to the law on 1 July 2006 which resulted in a change to the maximum period of backdating from one year to 12 weeks.  Miss Mitrevski believes that Centrelink should have told her to lodge a claim before the changes came into effect.

Consideration of the Issues

7. Section 11(1) of the Social Security (Administration) Act 1999 (the Administration Act) provides that a person must make a claim for a social security payment to be eligible for that payment. Section 16 of the Administration Act sets out the steps involved in making a claim.

8. Section 41 of the Administration Act provides that, unless another provision of the social security law provides otherwise, a social security payment becomes payable on the person’s start day. Section 42 of the Administration Act provides that the start day is calculated in accordance with clause 3(1) of Schedule 2 of the Administration Act, which states that:

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.

9. Section 13 of the Administration Act provides a mechanism for deeming that a person’s start day may be the date the person contacts Centrelink:

13.(1)  For the purposes of the social security law, if:

(a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and

(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and

(c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and

(d)the person lodges a claim for the social security payment within 14 days after the Department is contacted;

the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.

10.     Centrelink’s records indicate that Miss Mitrevski contacted Centrelink seeking carer allowance on 17 August 2006.  She lodged the claim form on 21 August 2006.  The claim is therefore taken to have been made on 17 August 2006.

11. Clause 16 of Schedule 2 to the Administration Act provides that carer allowance for a disabled child can be backdated further than the claim date in certain circumstances:

16 (1)  If:

(a)a person is qualified for carer allowance for a care receiver who is a disabled child or for 2 care receivers who are disabled children; and

(b) the person makes a claim for carer allowance within 12 weeks after the day on which the person became qualified for the allowance;

the person's start day in relation to the allowance is the day on which the person became qualified for carer allowance.

(2)  If:

(a)a person is qualified for carer allowance for a care receiver who is a disabled child or for 2 care receivers who are disabled children; and

(b)the person makes a claim for carer allowance more than 12 weeks after the day on which the person became qualified for the allowance;

the person's start day in relation to the allowance is the first day of the period of 12 weeks ending immediately before the day on which the claim was made.

12.     On 4 September 2004, a speech pathologist at Sunshine Hospital wrote to Centrelink advising that Kayla had been referred to the hospital by a maternal and child health nurse on 3 May 2006.  A speech pathologist and occupational therapist saw Kayla on 16 August 2006.  A paediatrician at the hospital saw Kayla on 21 August 2006 and provided a report to Centrelink on the same day. 

13. On the basis of the medical evidence, the Tribunal is satisfied that Kayla has been suffering from the disability for which Miss Mitrevski has been granted carer allowance for more than 12 weeks prior to 17 August 2006. However, clause 16 of Schedule 2 only allows for the backdating of the allowance for a maximum of 12 weeks. There is no other provision in the legislation allowing for further backdating. The Tribunal does not have the legal power to override the relevant legislation. Therefore, the Tribunal has no discretion, whatsoever, to direct the payment of carer allowance from a date earlier than 12 weeks before the day that the claim was made.

14.     Ms Ailsa Bramley, the Centrelink advocate representing the respondent, informed the Tribunal that an error had been made in the calculation of the 12 weeks preceding the day of claim.  The payment should have been backdated to 25 May 2006 rather than 26 May 2006.  The Tribunal therefore directs that an extra day’s payment of carer allowance be made to Miss Mitrevski.   

DECISION

15.     The Tribunal varies the decision under review and directs that payment of carer allowance be backdated to 25 May 2006 rather than 26 May 2006.

I certify that the fifteen [15] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  25 January 2007
Date of decision:  2 February 2007
Advocate for applicant:                Self‑represented

Advocate for respondent:            Ms Ailsa Bramley,

Centrelink Legal Services Branch