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

[2007] AATA 1819

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1819

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 20061236

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		ROSALIE NOLA QUAIFE

Applicant

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

Respondent

DECISION

Tribunal Dr Kerry Breen, Member

Date1 October 2007

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Kerry Breen

Member

SOCIAL SECURITY – carer allowance – provisions for earlier start day for the allowance

Social Security (Administration) Act 1999

REASONS FOR DECISION

1 October 2007 Dr Kerry Breen, Member   

1.      Ms Rosalie Nola Quaife lodged a claim with Centrelink on 3 August 2006 for a carer allowance for the care that she was providing for her son Dane, who had been diagnosed with insulin dependent diabetes in May 2005.  Dane is now 14 years old. Centrelink is the service delivery agency for the Secretary to the Department of Families, Community Services and Indigenous Affairs (the Secretary).  On 21 September 2006 a Centrelink officer decided that the claim for the carer allowance be granted as from 11 May 2006.

2. Ms Quaife requested that the payment be backdated on the grounds that her son’s diagnosis had been made in May 2005, and that due to her psychological state, she had been unable to lodge the documents earlier. The original decision maker affirmed his decision on 27 September 2006. A Centrelink authorised review officer also affirmed that decision on 26 October 2006. On 31 October 2006 Ms Quaife sought review of this decision by the Social Security Appeals Tribunal the SSAT). The SSAT affirmed the decision. Ms Quaife now seeks a review of the SSAT decision by this Tribunal. The Tribunal reviewed the decision by considering the documents lodged without holding a hearing, pursuant to section 34J of the Administrative Appeals Tribunal Act1975 (the AAT Act).

LEGISLATION

3.      The relevant legislation is the Social Security (Administration) Act 1999 (the Act). Section 41(1) states:

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

A person’s start day is determined under Schedule 2 of the Act; which in clause 3(1) provides:

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.

4.      Clause 16 of Schedule 2 of the Act provides the legal basis for any back‑dating.  Clause 16 states:

16(1) If:

(a)a person is qualified for carer allowance for a care receiver who is a disabled child of 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 twelve weeks ending immediately before the day on which the claim was made.

THE ISSUE

5.      The only matter in issue before the Tribunal is whether, under the above legislative provisions, Ms Quaife is entitled to an earlier starting date for the carer allowance than 11 May 2006.

MATERIAL BEFORE THE TRIBUNAL

6. I had before me a submission to the Tribunal from Ms Quaife received on 19 July 2007, the Secretary’s Statement of Facts and Contentions and the documents lodged by the Secretary pursuant to section 37 of the AAT Act.

CONTENTIONS

7.      Ms Quaife contends that as she has been caring for her son since the diagnosis of his diabetes in late May 2005 and as she has since been granted a carer allowance, that allowance should be back–dated to the time that he was diagnosed with diabetes mellitus.  She states that she has struggled psychologically to cope with her son’s illness and that this led to her delay in lodging the claim.  She provided the SSAT with a report from her psychologist, Ms Louise van Smeerdijk, dated 6 November 2006.  That report confirms a diagnosis of psychological difficulties which have interfered with Ms Quaife’s concentration and other cognitive abilities.  Ms Quaife informed the SSAT that she was given information by the Royal Children’s Hospital about the carer allowance at the time that her son was first diagnosed with diabetes mellitus, but delayed returning the paper work to Centrelink. When it was lodged in August 2006, she was asked by Centrelink to provide a new medical report as the date of the previous report was regarded as too distant.  She provided a new report signed by Dr Phil Bergman dated 12 September 2006.

8.      On behalf of the Secretary, Mr David Perdon, a Centrelink advocate, contends that section 41(1) of the Act provides that a social security payment becomes payable to a person on the person’s start day; and that clause 3(1) of Schedule 2 of the Act states that if a person makes a claim for payment and is qualified for payment on the day the claim is made, then that person’s start date is the day on which the claim is made.  However, if a person makes a claim more than twelve weeks after they become qualified for a carer allowance, clause 16 of Schedule 2 of the Act permits the claim to be backdated for up to twelve weeks.

9.      Mr Perdon also explained that the present form of clause 16 of Schedule 2 of the Act was inserted by Schedule 6 of the Family Assistance, Social Security and Veterans’ Affairs Legislation Amendment (2005 Budget and Other Measures) Act 2006 (Nº 36 of 2006) and commenced from 1 July 2006.  He observed that Ms Quaife’s claim was lodged after that date and that the amending Act did not contain relevant savings provisions.  [I interpose here for the benefit of Ms Quaife to explain that the absence of savings provisions means that the Parliament did not provide any leeway for decision makers to continue to use the previous provisions whereby a carer’s allowance could be back-dated for up to twelve months].  Mr Perdon added that, in the Secretary’s view, the decision to grant a carer allowance from 11 May 2006, being twelve weeks before the lodging of the claim on 3 August 2006 was legally correct.

10.     The papers provided to this Tribunal include the earlier treating doctor’s report prepared by Dr Katharine Squires dated 10 November 2005 (this is presumably the report that was regarded by Centrelink in August 2006 as being too distant in time).

CONSIDERATION

11.     I accept Ms Quaife’s statement, supported by the report from her psychologist, that she has been psychologically distressed, in part by the illness with which her son had been diagnosed.  I also accept that this has been a large factor in the delay in her claiming a carer’s allowance.  The existence of the treating doctor’s report dated 10 November 2005 provides clear evidence of Ms Quaife having in mind the need to lodge such a claim at least as far back as that date.

12.     I have carefully read the current relevant legislation, the back-dating provision of the previous legislation and the Minister’s second reading speech and have come to the conclusion that, without any further change to the law, it is not legally possible for Centrelink to pay Ms Quaife a carer allowance prior to 11 May 2006.

13.     I have also examined whether there are legislative provisions for the Secretary to use any discretionary powers in such a situation and can find no such provisions.

14.     I therefore affirm the decision under review.

I certify that the fourteen [14] preceding paragraphs are a true copy of the reasons for the decision of:

Dr Kerry Breen, Member

(sgd)     Olympia Sarrinikolaou

Clerk

Date of hearing:  Hearing on papers

Date of decision:  1 October 2007
Advocate for the applicant:          Self‑represented
Advocate for the respondent:       Mr D. Perdon, Centrelink Legal Services Branch