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

[2008] AATA 574

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 574

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          2007/6096

GENERAL ADMINISTRATIVE DIVISION		)
Re		EDNA REEVES

Applicant

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

Respondent

DECISION

Tribunal Mr SC Fisher, Member

Date4 July 2008

PlaceBrisbane

Decision The Tribunal affirms the decisions under review.

................[Sgd]..............................

Member

CATCHWORDS

SOCIAL SECURITY – Administration of the Act – 2006 one-off payment to carers eligible for carer allowance – applicant not in receipt of carer allowance during period that included 9 May 2006 – no discretionary factors to be taken into account – applicant not entitled to 2006 one-off payment to carers eligible for carer allowance – decision under review affirmed.

Social Security (Administration) Act 1999 Part 4, Division 5

Social Security Act 1991 ss 992T, 992V

Administrative Appeals Tribunal Act 1975 ss43,37,34B

REASONS FOR DECISION

4 July 2008 Mr SC Fisher, Member      

INTRODUCTION AND BACKGROUND

1.      The current application for review by the Administrative Appeals Tribunal made by Mrs Reeves (“the Applicant") involves the question whether Mrs Reeves was qualified to be paid the 2006 one-off payment of $600 for carers.

2.       Mrs Reeves lodged a claim for carer allowance on 22 May 2006 after first contacting Centrelink about this entitlement on 15 May 2006.  The original decision maker within Centrelink decided on 21 July 2006 that Mrs Reeves could not be paid the 2006 one-off carer allowance bonus of $600 because she is not in receipt of carer allowance during a period of time that included 9 May 2006.  Accordingly, Mrs Reeves' application was rejected. 

3.      Subsequently, Mrs Reeve's application proceeded through internal review within Centrelink and later on the primary level of external review was undertaken by the Social Security Appeals Tribunal, which made a decision affirming the internal Centrelink decision on 10 December 2007.  On 12 December 2007, Mrs Reeves appealed to this Tribunal.

JURISDICTION

4. In a procedural sense, the Tribunal has jurisdiction in these appeals by virtue of Part 4, Division 5 of the Social Security (Administration) Act 1999 (“the Administration Act”). In a substantive sense, the merits of these appeals are governed by the Social Security Act 1991 (“the Act”).

THE ROLE OF THE TRIBUNAL

5.      The role of the Tribunal is to review the merits of the decision before it[1].  The Tribunal is guided by the norm that it should reach the “correct or preferable decision on the basis of the material before it”[2].  The Tribunal is “required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent”[3].  The Tribunal proceeds de novo[4].  The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it[5].

[1] See section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy [1998] 809 FCA per Drummond J.

[2] Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248 at [33] per Mansfield J.

[3] Re Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23].

[4] Bramwell v Repatriation Commission (1998) 51 ALD 56 at 60 per Weinberg J.

[5] Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 602.

6.      This Tribunal is not vested with a general discretion to circumvent, override, sidestep or supplant the otherwise very clear terms of legislation that determines income support entitlements such as age pension and disability support pension.

THE MATERIAL BEFORE THE TRIBUNAL

7. The Tribunal had before it the documents (the “T” documents) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and considered the material provided by the Applicant and the Respondent to the Tribunal.

HEARING ON THE PAPERS

8. At the request of the parties, the Tribunal made this decision on the papers as it appeared to the Tribunal that the issues for determination in this case could be adequately determined in the absence of the parties within the meaning and operation of s 34B of the AAT Act.

9.      The Applicant was represented by her daughter Mrs Hemmings.  The Respondent was represented by Mr Joe Guthrie, a Departmental Advocate.

10.     The Tribunal considered the documentary material very carefully.

ISSUE

11.     The principal issue before the Tribunal is within a short compass.  It is whether Mrs Reeves is qualified for the 2006 one-off carer allowance bonus of $600 as at 9 May 2006.

SUBMISSIONS FOR THE APPLICANT

12.     Mrs Reeves argued on (on the basis of an annotated copy of the decision of the Social Security Appeals Tribunal) that she should be paid the 2006 one-off carer allowance bonus of $600.  The Tribunal took into account the submissions and material provided at the Social Security Appeals Tribunal hearing.  The submissions for Mrs Reeves seeking to persuade this Tribunal that Mrs Reeves should be paid the 2006 one-off carer allowance bonus of $600 came from the T- documents.

13.     It is fair to say that Mrs Reeves advanced the following reasons why she should be paid the 2006 one-off carer allowance bonus of $600:

A.   Mrs Reeves has been caring for a person for 28 years under very difficult circumstances.

B.   Mrs Reeves has not received Centrelink payments for doing so.

C.   Mrs Reeves was relying on her daughter to give her the correct information about where to lodge the claim form and Mrs Reeves' daughter told her to lodge this claim through her doctor instead of Centrelink.

SUBMISSIONS FOR THE RESPONDENT

14. The essential reason advanced by the Respondent in its Statement of Facts and Contentions, that Mrs Reeves was not qualified to be paid the 2006 one-off carer allowance bonus of $600, was that Mrs Reeves did not meet the eligibility criteria in ss 992T and 992V of the Act as at 9 May 2006 and so Centrelink was not required to make this payment to Mrs Reeves.

FINDINGS OF FACT

15.     The Tribunal considered carefully the material before it.  The Tribunal makes the following findings of fact:

A.   Mrs Reeves' daughter first learned of the 2006 one-off carer allowance bonus of $600 a day before the 2006 Federal Budget.

B.   Mrs Reeves' daughter telephoned her mother and asked her to visit her doctor to have the claim forms filled out.

C.   Mrs Reeves' daughter did not know that her mother needed to go to Centrelink to obtain the relevant forms so that her doctor could fill the form out.

D.   Mrs Reeves lodged a claim form with Centrelink on 15 May 2006.

E.   Centrelink rejected Mrs Reeves claim on 21 July 2006.

F.    An Authorised Review Officer affirmed the original decision on 17 April 2007.

LEGISLATION

16. The substantive aspects of this appeal are governed by ss 992T and 992V of the Act.

17. It is not necessary to extract these provisions in these Reasons for Decisions. To summarise them, first, section 992T says that a person is qualified to be paid the 2006 one-off carer allowance bonus of $600 is being paid a carer allowance on a day that includes 9 May 2006 and where the claim was made on or before 9 May 2006. Section 992V of the Act determines that the amount of the 2006 one-off carer allowance bonus is $600.

Tribunal’s Reasons

18.     It was undisputed that Mrs Reeves first enquired about carer allowance on 15 May 2006 and later lodged a claim for carer allowance on 22 May 2006.

19. Section 992T makes it clear that to qualify for the 2006 one-off carer allowance bonus; the claimant had to be in receipt of carer allowance for a period of time that includes 9 May 2006.

20. Mrs Reeves argued that because her daughter advised her to see her doctor about the bonus payment, she should not be penalised for missing the 9 May 2006 deadline. The Tribunal considered this submission carefully as there are occasions when Australian law will allow people to avoid adverse consequences when this is due to the actions of other people. However, this particular facility is not allowed in the case of the carer allowance bonus because there is no margin for error contained within sections 992T and 992V.

21. Mrs Reeves lodged a claim with Centrelink on 22 May 2006, having first made an enquiry about this payment on 15 May 2006. Mrs Reeves made both her enquiry and her claim too late. Sections 992T and 992V do not contain any mechanism (such as a discretion) which allows Centrelink to favourably consider late claims or otherwise necessitous claimants.

22. It is clearly the policy of the Australia Government as expressed in ss 992T and 992V that to qualify for the 2006 one-off carer allowance bonus of $600, claimants must be in receipt of carer allowance as at 9 May 2006. This is a bright line rule made by the Australian Government as expressed in the Act. Either people meet the eligibility criteria for the bonus payment or they do not. There is no margin of error in favour of Mrs Reeves. On the basis of the evidence before the Tribunal, there was also no maladministration on the part of Centrelink in this case. Regrettably, Mrs Reeves was not qualified to be paid the 2006 one-off carer allowance bonus of $600.

TRIBUNAL’S CONCLUSION

23. On the basis of the evidence before it, and for these Reasons, the Tribunal concludes that Mrs Reeves was not qualified to be paid the 2006 one-off carer allowance bonus of $600 within sections 992T and 992V of the Social Security Act 1991 because Mrs Reeves was not paid carer allowance for a period of time that included 9 May 2006.

TRIBUNAL’S DECISION

24.     The Tribunal affirms the decision under review.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Fisher, Member.

Signed:         ..................................[Sgd]..............................................
  Elizabeth Young, Research Associate

Date/s of Hearing        Hearing on the papers
Date of Decision  4 July 2008
The applicant was assisted by her daughter, Mrs Judith Hemmings
Solicitor for the Respondent  Mr Joe Guthrie, Departmental Advocate