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

[2008] AATA 157

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 157

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N 200601309

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANGELIQUE PELLEGRINO

Applicant

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

Respondent

DECISION

Tribunal Ms Naida Isenberg, Senior Member

Date27 February 2008

PlaceCoffs Harbour

Decision The decision under review is affirmed.

.....…[sgd]…………………

Ms Naida Isenberg

Senior Member

CATCHWORDS

SOCIAL SECURITY – Carer Payment – whether start date can be backdated – no written notice acknowledging contact – no claim lodged within required time period 

Social Security (Administration Act) 1999 – sections 11, 13, 16 and Schedule 2

Scott and Secretary, Department of Family and Community Services [2005] AATA 269

REASONS FOR DECISION

27 February 2008 Ms Naida Isenberg, Senior Member        

DECISION UNDER REVIEW

1.        Mrs Pellegrino seeks review of a decision made by a Centrelink Customer Service Officer (“CSO”) on 1 February 2006 to pay her Carer Payment (“CP") from 24 January 2006, and not from any earlier date. This decision was affirmed on internal review on 6 July 2006, and by the Social Security Appeals Tribunal (“SSAT”) on 21 August 2006.

BACKGROUND

2.      Mrs Pellegrino was granted CP on 9 October 2003, on the basis of caring for her husband, who received a Disability Support Pension (“DSP”).

3.      On 16 June 2005, Mrs Pellegrino informed Centrelink that her husband would be starting full time work on 20 June 2005.  As a result both Mr Pellegrino’s DSP and Mrs Pellegrino’s CP were cancelled from 20 June 2005. 

4.      On 11 October 2005, Mrs Pellegrino advised Centrelink that Mr Pellegrino had a relapse and that she would like to discuss claiming DSP. 

5.      On 12 October 2005, a pension re-claim form was lodged, with Mr Pellegrino as the main claimant. 

6.      On the pension re-claim form, question 13 asked “Is your partner also re-claiming a pension on this form?”.  In response to this question, there were two boxes with No or Yes next to it, one of which needed to be ticked.  The “No” box was ticked. The form was signed and dated 12 October 2005 by both Mr and Mrs Pellegrino. 

7.      On 12 October 2005, Centrelink sent letters to Mr and Mrs Pellegrino.  The letter to Mr Pellegrino advised that his DSP “will start again from 12 October 2005”. The letter to Mrs Pellegrino was about her having told Centrelink “to adjust...[her]…Family Tax Benefit payment to reduce any amounts that…[she]…may be overpaid this income year”, but said nothing about CP.

8.      On 24 January 2006, Mrs Pellegrino contacted Centrelink about her CP.  Centrelink sent her a claim form for CP and a letter confirming her contact.

9.      On 2 February 2006, Mrs Pellegrino lodged a claim for carer payment.  On the same day she lodged a written statement dated 1 February 2006, requesting that the start date for her claim for carer payment be made from October 2005 and not from January 2006. 

ISSUE BEFORE THIS TRIBUNAL

10.     The issue before the Tribunal is whether the start date of Mrs Pellegrino’s CP can be an earlier date than 24 January 2006.

LEGISLATION

11.     The relevant legislation is contained within the Social Security (Administration) Act 1999 (“the Administration Act”).

12. A person who wants to be granted a social security payment must make a claim: Section 11 of the Administration Act. The only way of making a claim is to lodge a written claim pursuant to subsections 16(1) and (2). Lodging a written claim is done by an approved form being delivered to a person or place approved by the Secretary: subsection 16(4). 

13. Once a valid claim has been made, and the claimant meets the qualification criteria, the social security payment start date is worked out in accordance with Schedule 2 of the Administration Act. Generally, the start date for payment is the day on which the claim is made: clause 3 in Schedule 2. Section 13 of the Administration Act contains provisions which allow the start date to be backdated. Provided all the requirements in subsection 13(1) are satisfied, the date the Department was contacted about a claim for a social security payment is deemed to be the date the claim was made. Section 13 provides, so far as is relevant, that:

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.

13(2)    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, other than crisis payment or special employment advance; 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 payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and

(e)       the Secretary is satisfied that:

(i)throughout the period starting on the day on which the Department was contacted and ending on the day on which the person lodged the claim, the person was suffering from a medical condition; and

(ii)that medical condition, or circumstances related to that medical condition, had a significant adverse effect on the person's ability to lodge the claim earlier;

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

13(3)    For the purposes of the social security law, if:

(a)the Department is contacted by or on behalf of a person (the claimant) in relation to a claim for a social security payment, other than crisis payment or special employment advance; and

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

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

(d) the claimant lodges a claim for the payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and

(e)       the Secretary is satisfied that:

(i)throughout the period starting on the day on which the Department was contacted and ending on the day on which the claimant lodged the claim, the claimant was caring for, or was the partner of, another person; and

(ii)throughout that period, the other person suffered from a medical condition; and

(iii)the medical condition, or circumstances related to the medical condition, from which the other person was suffering had a significant adverse effect on the claimant's ability to lodge the claim earlier;

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

13(3A) 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 more than 14 days, but not more than 13 weeks, after the Department is contacted; and

(e) the Secretary is satisfied that, in the special circumstances of the case, it was not reasonably practicable for the person to lodge the claim earlier;

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

THE EVIDENCE

14.     Mrs Pellegrino told me that she and her husband had been very pleased that he had a job opportunity which meant he could go off the DSP, and she, consequently, off CP.  When the job did not work out and he was further injured, they knew they would have to go back on the pension.  She went to Centrelink on 11 October 2005, the day after he ceased work.  She told Dale, the CSO she had previously dealt with, about what had happened and he gave her a form.  She took the form away and she and her husband filled in what they could.  Mr Pellegrino signed it, although it was only partially completed, and she took it back to Centrelink the next day because he was too ill to attend.

15.     She saw Dale again and he went through the form question by question.  He was ‘ticking questions’ and she thought question 13 was one he had completed.  The original form was available at the hearing but it was difficult for the parties, and me, to ascertain which, if any, questions were not completed in the same hand.  Mrs Pellegrino said she had most likely read the instructions about filling out the form before doing so and that before signing the form she had read the declaration on the back to the effect that the information provided was correct.

16.     Dale had said words to the effect: “Everything's fine.  The money will be in your account on Thursday.”  There was in fact money in the joint account on the following Thursday, but she did not realise it was only her husband’s DSP and not her CP as well.  She thought the DSP and CP had previously been paid in alternate weeks.  She said that she knew from beforehand that the rate of DSP was about $400 per fortnight and the rate of CP was about $300-$400 per fortnight.  Although she said that money was tight at that time – they had to borrow from family - it wasn’t until January 2006 that her husband noticed that the payments they were receiving from Centrelink were less than before.  She went to see Dale again and told him something was wrong because they were not getting as much as before.  He immediately looked up the computer and filled out a form for her on the spot.

17.     She said her husband had received a letter about his DSP in October but she did not receive a letter about CP.  However, she had not been expecting a letter, although ‘most likely’ she had received a letter when she had first gone onto CP. 

18.     The Centrelink advocate said that there was no dispute that Mrs Pellegrino would have qualified for CP from the date she had attended with the form.  It was also conceded that had Mrs Pellegrino attended Centrelink within 13 weeks of 11 October 2005, a ‘section 13 letter’ could have been issued at that time and Mrs Pellegrino could have had her start date backdated to 11 October 2005.

19.     Mrs Pellegrino said that at that time they were having problems with a neighbour, against whom they ultimately had to seek an AVO, and that this was causing a lot of stress to the whole family, especially their young daughter, for whom the neighbour was displaying unwanted affection.

20.     She said she trusted Dale to put her and her husband back into the same position they had been in previously.  She said he should have pointed out the effect of question 13 and that she had relied on him to accurately complete the form so as to put them back into the same position as beforehand. She said that Centrelink should be responsible for his negligence.

21.     Mrs Pellegrino said that she was a battler.  She had subsequently undertaken TAFE courses which she had passed with distinction.  She had also apparently excelled when working for Accor, and had commendations from her employer.

CONSIDERATION OF THE EVIDENCE

22.     In coming to the correct and preferable decision, I considered all the evidence, submissions, case law and relevant legislation.

23.     The facts in the matter were not in dispute, and I accept Mrs Pellegrino’s account.

24. Section 13 of the Administration Act provides some exceptions to the general rule set out in Section 11 of the Administration Act. S13(1), for instance, provides that if a qualified claimant contacts Centrelink and then lodges a claim form within 14 days, the claim can be paid from the date Centrelink was contacted. Other subsections address circumstances which delay lodgement of the formal application and allow for lodgement up to 13 weeks after contact. It is irrelevant if any of these apply to Mrs Pellegrino, because there is a requirement, before the benefit of s13 backdating can be obtained, that Centrelink give the person a written notice acknowledging the contact. Therefore, even if 11 October 2005 can be taken to be the date Mrs Pellegrino contacted Centrelink to register her intention to claim her carer payment, Centrelink did not acknowledge her intention to claim with a notice as required by every subsection of Section 13 of the Administration Act.

25. As discussed at the hearing, this requirement of section 13 may lead to bizarre results. For example, if for reasons of negligence, as may be the case in this matter, Centrelink does not send the acknowledgement letter and further enquiry is not made by the claimant within 13 weeks, the claimant can never succeed in having the start date backdated. The same result would occur if there was a Centrelink computer error that failed to issue the letters. The end result is that back-dating the claim could never be achieved when the only ‘fault’ of the claimant is to have failed to follow up with Centrelink if pay was not received as expected. If the claimant is unfamiliar with the system, and does not, for instance, expect an acknowledgement letter, or is not financially ‘savvy’, the claimant is entirely in Centrelink’s hands. It was conceded in this case that, had Mrs Pellegrino attended Centrelink within 13 weeks, the ‘error’ could have been corrected: the acknowledgement letter could have been issued at that time and the claim backdated to 11 October 2005. However, I am not confident that that would occur in every case, especially if the CSO is unfamiliar with the claimant’s circumstances or is unprepared to admit having made an error.

26.     I accept that the Pellegrino family had very difficult issues during the relevant period.  However, the Act is strict: I have no discretion in deciding whether Mrs Pellegrino can be paid carer payment earlier than 24 January 2006.

27.     Having said this though, I wish to note that it is clear that Mrs Pellegrino relied on the Centrelink officer to assist her in completing the form.  This is not a matter like Scott and Secretary, Department of Family and Community Services [2005] AATA 269, where the Centrelink officer did not know the customer’s circumstances. In this matter it was not disputed that Dale knew precisely what the Pellegrinos were endeavouring to achieve by lodging the re-claim form, namely that the DSP and CP be re-instated. In that regard it is irrelevant if Mrs Pellegrino or Dale completed the form, because Dale did not check it and set in train the procedure for payment of CP, as he had been asked.

DECISION

28.      The decision under review is affirmed.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Naida Isenberg, Senior Member

Signed:         [sgd]
  Tal Aviram, Associate

Date of Hearing  7 February 2008  
Date of Decision  27 February 2008 
Representative for the Applicant               Self-represented

Representative for the Respondent        Ms Susan Mantaring, Centrelink Legal Services