O'Connor and Secretary, Department of Social Services (Social services second review) - [2023] AATA 3419

O'Connor and Secretary, Department of Social Services (Social services second review) [2023] AATA 3419 (24 October 2023)
Division:GENERAL DIVISION
File Number: 2023/3311
Re:Mr Joel O'Connor
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION

Tribunal:Senior Member C. J. Furnell
Date:24 October 2023
Place:Melbourne

The decision as affirmed by the Social Services and Child Support Division of the Tribunal on 31 March 2023 is affirmed.
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Senior Member C. J. Furnell

Catchwords
SOCIAL SECURITY – family assistance – carer allowance – date of entitlement – whether the applicant’s carer allowance can be backdated – interception of a communication passing over a telecommunications system as evidence of special circumstances – alleged failure by the respondent to advise the applicant of his entitlement to a carer allowance – alleged breach of duty of care – decision under review affirmed
Legislation

Social Security (Administration)Act 1999 (Cth)
Telecommunications (Interception and Access) Act1979 (Cth)
Social Security Act 1991 (Cth)
Surveillance Devices Act 1999 (Vic)
Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Elgar and Secretary, Department of Social Services (Social services second review) [2019] AATA 60
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529
Murphy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 115
Noureddin and Secretary, Department of Social Services (Social services second review) [2021] AATA 4599
R v Wang [2007] VSCA 296
Scott v Secretary, Department of Social Security [1999] FCA 1774
Scott v Secretary, Department of Social Security [2000] FCA 1241
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Stimpson v Allied Rural Pty Ltd (subject to deed of company arrangement) & Ors [2022] QSC 74

Secondary Materials

Halsbury's Laws of Australia
Social Security (Administration) (Class of Persons Intent to Claim) Determination 2018
REASONS FOR DECISION

Senior Member C. J. Furnell
24 October 2023

On 20 May 2022, the respondent decided to grant the applicant’s claim for a carer allowance as from the date he formally claimed the allowance, 19 May 2022.[1]
[1] T15, p122.
The applicant sought internal review of that decision contending that his entitlement to the allowance arose in September 2020.
On 9 August 2022, an authorised review officer of the respondent decided to affirm the May 2022 decision, a decision which was in turn affirmed by the Tribunal’s Social Services and Child Support Division (“SSCSD”) on 31 March 2023.
The applicant applied for review of the decision, as affirmed by the SSCSD, in the General Division of the Tribunal.[2]
[2] Social Security (Administration) Act 1999, s 179(2). Where the SSCSD affirms a decision, the subject of review in the General Division of the Tribunal is taken to be the decision as affirmed by the SSCSD.
In conducting that review, the Tribunal is required to stand in the relevant decision-maker’s shoes to “do over again” that which was done by the decision-maker.[3] In doing so, it performs the same function, exercises the same power,[4] is subject to the same constraints and addresses the same question or questions[5] as the decision-maker.
[3] Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], quoting with evident approval two earlier decisions, Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51] and Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 315 [40]-[100].
[4] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529 per Katzmann J at [34] citing Esber v Commonwealth of Australia (1992) 174 CLR 430 at 440. Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [14]-[15]. Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], where it is said that the “…merits review function of the AAT is “to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review”. The function of the AAT, in other words, is “to do over again” that which was done by the primary decision-maker.”
[5] Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [51], where it is said that the “…AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT’s review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision”.
Standing in those shoes, the question in issue for the Tribunal is, essentially, to identify when the carer allowance for which the applicant was qualified began to be payable.
For the reasons which follow, I have decided that the carer allowance began to be payable on 19 May 2022. Hence, the decision under review is affirmed.
Material before the Tribunal
The Tribunal is obliged to make “the correct or preferable decision” on the material before it.[6]
[6] See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [96]–[98] (Hayne and Heydon JJ).
The material before the Tribunal included evidence adduced at the hearing of this proceeding and certain documentary material lodged with the Tribunal prior to the hearing.
As for evidence adduced at the hearing, the Tribunal heard from the applicant.
As for documentary material lodged with the Tribunal, it comprised:
(a)A bundle of copy documents of 179 pages lodged with the Tribunal by the respondent under s 37(1) of the Administrative Appeals Tribunal Act 1975 (designated in these reasons with a “T”).
(b)A supplementary bundle of such documents of 11 pages (designated in these reasons with a “ST”).
(c)A document being a response by the applicant to a letter of 27 June 2023.
(d)An early childhood case formulation summary report of the Australian Childhood Trauma group dated 10 November 2022.
(e)A Victorian Department of Health and Human Services letter of 5 January 2021.[7]
(f)A single page document including a screen shot of a log of applicant correspondence which the applicant contends was sent to the respondent in 2019.[8]
A recording of the Applicant’s phone call to the Services Australia child support and family line dated 18 April 2023.[9]
[7] Lodged with the Tribunal and copied to the respondent in the course of the hearing.
[8] According to Tribunal records, it was lodged with the Tribunal and copied to the respondent in the course of the hearing, albeit that the applicant contended that he had lodged that document with the Tribunal in the week preceding the hearing.
[9] Lodged with the Tribunal and copied to the respondent the morning of the hearing.
I do not have regard to the last item just mentioned, the recording of a telephone conversation of 18 April 2023. The recording was made available to me on the morning of the hearing. In the course of the hearing, I expressed doubt as to the legality of what had occurred given that, in response to questions posed of him, it became apparent that the applicant had been party to the conversation but had not obtained the consent of the other party to his recording of the conversation, let alone informed the other party of the fact that he was recording the conversation. In this regard, I note that, as a general rule under Commonwealth law, it is an offence for a person to intercept a communication passing over a telecommunications system without the knowledge of the person making the communication,[10] with the concept of “interception” being defined so as to include listening to or recording a communication in passage over a telecommunications system.[11] Moreover, and as a general rule, under Victorian law[12] it is an offence for a person to communicate a record of a private conversation made using a listening device, absent the consent of each party to the conversation.[13]
[10]Telecommunications (Interception and Access) Act 1979, ss 7(1) and 105.
[11] Ibid, s 6(1).
[12] The applicant sent the recording to the Victorian Registry of the Tribunal.
[13]Surveillance Devices Act1999, s 11.
The respondent lodged submissions about the documentary material that had been lodged with the Tribunal prior to the hearing.[14]
[14] See the respondent’s statement of facts, issues and contentions of 25 August 2023 (“RSFIC”).
Carer allowance
In August 2020, the applicant became the sole carer of his son, aged under 16.
On 19 May 2022, the applicant made a claim for a carer allowance.[15]
[15] T8, pp58-64.
The carer allowance is provided for in Part 2.19 of the Social Security Act 1991. As an allowance provided for in that Act[16] and, hence, a social security payment for the purposes of the Social Security (Administration) Act1999 (“SSA Act”), the applicant’s claim to the allowance was required to be either granted or rejected.[17]
[16] See Part 2.19 of the SSA Act.
[17]SSA Act, s 36.
That claim was required to be granted if the applicant was qualified for the allowance and the allowance was payable.[18]
[18]Ibid, s 37.
Hence, two types of condition were of relevance to the applicant’s claim for a carer allowance; qualification and payability.
In this proceeding, no issue is taken with the applicant’s qualification for a carer allowance. In this regard, I note that, absent the applicant being in receipt of a carer payment[19] and given that his son was aged under 16, for the applicant to have qualified for a carer allowance, it is required that his son have a disability from which he is likely to suffer permanently or for an extended period and that either the disability be one to which a particular declaration applies or that the applicant have been given a rating under a particular determination.[20]
[19]Social Security Act 1991, s 954B.
[20]Social Security Act 1991, ss 952 and 953.
As for payability, subject to certain limitations imposed by the Social Security Act 1991,[21] provisions governing this issue are found in the SSA Act. Pursuant to that Act, the allowance for which the applicant qualified will have become payable to the applicant on the “start day” in relation to the allowance.[22]
[21]Social Security Act 1991, ss 958-967.
[22]SSA Act, s 41.
The applicant’s start day in relation to the carer allowance is worked out in accordance with Schedule 2 to the SSA Act.[23]
[23] SSA Act, s 42.
Schedule 2 is divided into three parts. Part 2 sets out the general rules applicable to the determination of a social security payment’s start day. Under cl 3 of Part 2 of Schedule 2, a person’s start day in relation to a social security payment is generally the day on which the claim is made (assuming the person was then qualified for the payment).
Part 3 of Schedule 2 provides for the backdating of a start day in certain circumstances. It is not submitted and the material before me does not suggest that any of the particular circumstances outlined in Part 3 apply so as to permit the backdating of the start day with respect to the applicant’s carer allowance.[24]
[24] Examples of circumstances identified in Part 3 include where an applicant’s partner has recently made a claim or where a claim is made within a short period of a benefit having been transferred.
The day on which the applicant made his claim for a carer allowance is the day he actually lodged a written claim for the allowance[25] (19 May 2022).
[25] SSA Act, s 16(1) which must be made in accordance with an approved form: s 16(2).
It is not submitted and the material before me does not suggest that the provisions of the SSA Act which can operate so as to render a claim for a social security payment unnecessary or which deem a claim to have been made before the claim is actually made apply in the circumstances.
For instance, a claim for a carer allowance is unnecessary if the claimant qualifies for a carer payment[26] or, in certain circumstances, if a claim for a carer payment has been rejected or a carer payment entitlement has been suspended or cancelled.[27] It has not been suggested that the applicant so qualifies,[28] noting that the applicant appears to have inquired about carer payments in August 2022 but taken the matter no further.[29]
[26] SSA Act, s 12F.
[27] SSA Act, s 15A.
[28] If the person being cared for is aged under 16, a carer payment qualification criterion requires, amongst other things, that the person have a severe disability or severe medical condition: see s 197B.
[29] T14, p130; T16, p172.
Similarly, in certain circumstances, a claim is taken to have been made if the claimant is included in a class of persons determined in an instrument made under s 14A of the SSA Act.[30] An instrument has been so made.[31] It is, however, not submitted and the material before me does not suggest that the applicant falls within a class of persons specified in the instrument.[32]
[30] SSA Act, s 13.
[31] See the Social Security (Administration) (Class of Persons Intent to Claim) Determination 2018.
[32] Examples of classes of persons specified in the instrument include persons who are homeless or subject to family violence. They also include persons unable to lodge a claim due to special circumstances beyond the control of the person concerned. Before the SSCSD, the applicant gave evidence to the effect that he was not a member of any class of persons to which the instrument applies: T2, p9.
Accordingly, the provisions of the SSA Act which can operate to back-date a start day, render a claim for a social security payment unnecessary or which deem a claim to have been made before the claim is actually made do not apply in the circumstances.[33]
[33] SSA Act, s 12 is another provision under which a claim may be taken to be made before it is actually made. It, however, applies to income support payments. A carer allowance is not such a payment.
This means that the applicant’s carer allowance became payable on the day the applicant lodged a written claim for the allowance (19 May 2022).
Relevance of alleged failure by respondent
The applicant submitted that he should be entitled to the carer allowance as from September 2020. It was then, according to the applicant, that the respondent was made aware of matters that ought to have led it to advise the applicant of his entitlement to a carer allowance. The respondent’s failure to advise of that entitlement was said to represent a contravention of service guidelines published by the respondent.[34]
[34] T1, p2. In his application to the Tribunal of 10 May 2023, the applicant stated that the respondent failed “…to take into account any of the evidence provided showing that Centrelink was notified in 2020 of full time care of child, documentation from the department of human services and other service providers showing the child was vulnerable and the family had high needs and that Centrelink did not follow its own charter to assess the family’s needs, provide detail on the carer’s allowance the family warranted, and was subsequently granted… The family was denied $7000 of the carer’s allowance they were entitled to…[the child’s] behaviours were outlined in documentation sent to Centrelink in in 2020.” See also T10, pp84 and 92 and T12, p104 where, in correspondence to the respondent, the applicant stated that “… you failed due diligence to review my entitlement, despite receiving paperwork I provided at the time, from DHS, showing my son was a vulnerable and neglected child and I a single parent.”
I do not accept that submission.
First, the time when the applicant’s carer allowance became payable is dictated by the legislation outlined earlier. As is clear from that outline, I have concluded that, under that legislation, the applicant’s carer allowance was not payable before he lodged his claim for the allowance. A failure to advise of an entitlement to a social security benefit does not override statutory requirements applicable to the entitlement.[35]
[35] In Scott v Secretary, Department of Social Security [1999] FCA 1774, Heerey J stated at [51] that “Whilst one would expect that the department would and does make every endeavour to explain to would-be applicants, when appropriate, their right to apply for the many and various social welfare benefits administered by the department, there is no legal obligation upon the department and its officers to do so. Failure to do so does not thereby override statutory requirements to entitlements.” On appeal in Scott v Secretary, Department of Social Security [2000] FCA 1241, Beaumont and French JJ stated at [20] “… there was no general common law duty of care to advise the appellants of benefits that might potentially be available under the Act…”. At [23], their Honours went on to say that “It is one thing to expect a Department (reasonably) to communicate accurately the general range of benefits available; it is another to expect the Department to have sufficient knowledge of the personal circumstances of any particular applicant for social security, so as to be in a position to advise the applicant of specific benefits that might be available in his or her personal circumstances.”
Second, while given my conclusions concerning the applicable legislation, I need make no finding on the issue, I note that the applicant’s claim that the respondent was aware in September 2020 of matters that ought to have led it to advise the applicant of an entitlement to a carer allowance is contentious. In this regard, in April 2023, the applicant claimed compensation under the Scheme for Compensation for Detriment caused by Defective Administration (the “CDDA scheme”).[36] The claim was rejected. After outlining information which was found to have been provided by the applicant to the respondent, the decision-maker (an officer of the respondent) concluded that there were “…no prompts in the above incidental descriptors for a service officer to generate a discussion about Carer Allowance.”[37]
[36] It is noted that a CDDA scheme claim can only succeed if there is no meaningful prospect of the Commonwealth being found to be legally liable for the compensation sought (see T13, p109). Having made that claim it might have been contended that he was unable to continue with his application before the Tribunal, given that it entailed him submitting that the respondent was legally obliged to have made the carer allowance available to him from September 2020. In this regard, a “… person may not ‘ approbate and reprobate’, meaning that a person, having a choice between two inconsistent courses of conduct and having chosen one, is treated as having made an election from which he or she cannot resile once he or she has taken some benefit from the chosen course.”: Halsbury's Laws of Australia at 190-35. See, for example, R v Wang [2007] VSCA 296 at [58] and Stimpson v Allied Rural Pty Ltd (subject to deed of company arrangement) & Ors [2022] QSC 74.
[37] ST, p9 [47].
Third, I note the applicant’s suggestion that he is entitled to recompense because the respondent breached a duty of care owed to the applicant by its failure to advise of the applicant’s entitlement to the carer allowance.[38] The Tribunal does not have jurisdiction to provide compensation for a breach of a duty of care. Moreover, it may be that the respondent is under no duty to advise prospective recipients of social security benefits about their entitlement to specific benefits.[39]
[38] T10, p92.
[39] See Scott v Secretary, Department of Social Security [2000] FCA 1241 at [20]-[23]. See also Noureddin and Secretary, Department of Social Services (Social services second review) [2021] AATA 4599 at [54], where it is said in relation to Centrelink that “It was not their responsibility to proactively investigate her circumstances and to advise her of a change in her entitlements.” In Elgar and Secretary, Department of Social Services (Social services second review) [2019] AATA 60 at [133], it was said that “Centrelink is not required to advise claimants about their legal rights to any particular social security payment or the rate of payment”, citing Murphy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 115, at [9], [17].
DECISION

The decision the subject of review is affirmed.

I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of C. J. Furnell, Senior Member

...[sgn].....................................................................
Associate
Dated: 24 October 2023

Date(s) of hearing:

28 September 2023

Applicant:

Self Represented

Solicitor for the Respondent:

Ms Kathryn Lieschke

Date(s) of hearing:	28 September 2023
Applicant:	Self Represented
Solicitor for the Respondent:	Ms Kathryn Lieschke