Olejnik and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2009] AATA 388

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 388

ADMINISTRATIVE APPEALS TRIBUNALNº 2008/4820

GENERAL ADMINISTRATIVE DIVISION

Re:IRENE OLEJNIK

Applicant

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

Respondent

DECISION

Tribunal:       Dr Gordon Hughes, Member

Date:             20 May 2009

Place:            Melbourne

Decision:For reasons given orally at the hearing, the Tribunal affirms the decision under review.

[sgd] Gordon Hughes
  Member

SOCIAL SECURITY - start day for carer allowance – applicant cared for mother from 2002 but lodged claim in 2008 – entitlement to allowance linked to date of claim

Social Security (Administration) Act 1999 sections 11, 13, 41, 42, Schedule 2

REASONS FOR DECISION

29 May 2009  Dr Gordon Hughes, Member

1. The issue the Tribunal must decide is whether the applicant, who had been in receipt of payment of carer allowance since 19 March 2008, was entitled to claim arrears of payments dating back to 2002.  The applicant asserted that she had been the sole carer to her mother since the death of her father on 8 June 2002 but she had been unaware of her right to claim carer allowance until early 2008 when she lodged a claim.

2. The applicant contacted Centrelink on 19 March 2008 and subsequently lodged a claim for carer allowance on 9 April 2008.  Centrelink is the service provider for the Department of Families, Housing, Community Services and Indigenous Affairs.

3. The applicant's claim for carer allowance was supported by a Health Professional Assessment from Dr Chee M Chong dated 17 April 2008.  The assessment described the applicant's mother as suffering a permanent disability which required help on a daily basis.  The applicant's mother’s medical conditions included atrial fibrillation, osteoarthritis, glaucoma, obesity and depression.

Relevant Law

1. Section 11(1) of the Social Security (Administration) Act 1999 (Cth) (the Act) provides that a person who seeks a grant of a social security payment must make a claim for the payment in accordance with that Division of the Act. Relevantly, section 13(1) sets out the circumstances in which a claim is deemed to have been made:

   13Deemed claim—person contacting Department about a claim for a social security payment

   (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.

2. Section 41(1) of the Act provides:

   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.

3. Section 42 provides:

   For the purposes of the social security law, a person's start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2.

4. Schedule 2 clause 3(1) provides:

   If:

   (a) a person makes the 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.

5. Applying the above provisions, it is clear that the applicant's start day, being the day upon which she contacted Centrelink in connection with the claim, was 19 March 2008.  Although she may have been the sole carer for her mother since 2002, the legislation is quite precise in relation to the date upon which an entitlement to a benefit of this nature commences.  The start day is directly and unambiguously linked to the timing of the claim.  For this reason, the applicant is only entitled to receive the benefit from 19 March 2008

6. In limited circumstances, a person's start day can be backdated.  Schedule 2 clause 17 provides for the backdating of carer allowance where the disability affecting the care receiver is due to an acute onset.  However, this provision has no application in the present case because Dr Chong specifically stated in the Health Professional Assessment that the applicant's mother’s current care needs were not attributable to an acute onset. 

7. The applicant had previously contacted Centrelink about her claim on 25 January 2008.  She contended that she did not receive a letter from the respondent advising her that if she lodged a claim by 8 February 2008, her date of contact would be treated as 25 January 2008.  If this assertion were sustained, she would at least have been entitled to back payments for the period between 25 January 2008 and 19 March 2008.  The Tribunal is not, however, persuaded that this assertion by the applicant can be sustained, given the applicant's production of a copy of the letter dated 25 January 2008.

8. For the above reasons, the Tribunal affirms the decision under review.

I certify that the [11] eleven preceding paragraphs are a true copy of the reasons for the decision herein of

Dr Gordon Hughes, Member

[sgd]: Leah Berardi

Clerk

Date of Hearing  20 May 2009

Date of Decision  20 May 2009
Applicant self represented        Ms Irene Olejnik
Advocate for the Respondent   Mr Tim de Uray, Centrelink Legal Services