Richard Elliott and Secretary, Department of Social Services
[2014] AATA 432
•2 July 2014
[2014] AATA 432
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/5352
Re
Richard Elliott
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Member I Thompson
Date 2 July 2014 Place Adelaide The decision under review is affirmed.
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Member I Thompson
CATCHWORDS
SOCIAL SECURITY - Pensions, benefits and allowances - Carer Payment - Whether start date of payment is correct - Date of enquiry for payment of benefit - Date of actual lodgement of claim form - Valid lodgement of claim form later than prescribed limit - No provision for backdating grant to date of enquiry - Decision under review affirmed.
LEGISLATION
Social Security Act 1991
Social Security (Administration) Act 1999 ss 11, 12, 13, 16
SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Member I Thompson
2 July 2014
INTRODUCTION
Mr Elliott lodged a claim for Carer Payment with Centrelink on 29 May 2013. The basis of the claim was that he cares for a friend, Mr Anthony Hogan.
Centrelink granted the Carer Payment commencing on 29 May 2013.
Mr Elliott maintained that he commenced caring for Mr Hogan around 1 January 2013 and that he should be paid Carer Payment from that date.
On an internal review, an Authorised Review Officer (ARO) varied the original decision. The ARO found that Mr Elliott initially contacted Centrelink about Carer Payment on 17 April 2013. On analysis of Centrelink records, the ARO noted that Centrelink issued a claim form to Mr Elliott for Carer Payment on 17 April 2013 which included a letter advising that the claim was due by 1 May 2013. On 24 April 2013 Centrelink sent an SMS message advising Mr Elliott to return the requested documents to the local Centrelink office.
Mr Elliott contacted Centrelink on 23 May 2013 about the claim when he was advised verbally to return the forms to Centrelink.
The ARO concluded that the earliest date from which the Carer Payment could commence was 23 May 2013 because Mr Elliott had contacted Centrelink about the claim at that time, before lodging a claim in writing on 29 May 2013.
The ARO reasoned that because the claim was made more than 14 days after the contact on 17 April 2013 and in the absence of circumstances that would have prevented Mr Elliott lodging within 14 days, the earliest that he could be paid is from the date of the contact on 23 May 2013.
Mr Elliott applied to the Social Security Appeals Tribunal (SSAT) for a review of the decision of the ARO. The SSAT affirmed the decision under review and found that there were no grounds on which to deem that Mr Elliott made a claim for Carer Payment on a date earlier than 23 May 2013.
By application dated 18 October 2013 Mr Elliott applied to this Tribunal for review of the decision of the SSAT. In his reasons for the application, Mr Elliott claimed that five and a half months of arrears in Carer Payment were owing to him.
LEGISLATION AND ISSUES
Sections 11 and 16 of the Social Security (Administration) Act 1999 (the Administration Act) provide that for a payment to be granted, a person must lodge a claim in writing or make a claim in a manner determined by the Secretary.
The issue which the Tribunal must determine is the date from which Mr Elliott can be paid Carer Payment. In order to determine that date, it is necessary to ascertain when Mr Elliott first contacted Centrelink about the payment and whether he lodged a claim in writing within 14 days (s 13(1) of the Administration Act).
If the claim is not lodged within 14 days of the contact with Centrelink, s 13 of the Administration Act also allows for the time limit in lodging the claim to be extended to 13 weeks provided that the person had a medical condition that prevented lodgement of the claim or if there were special circumstances that prevented the person from lodging the claim earlier.
In certain circumstances the Secretary has discretion to deem a claim to have been made if the person qualified for a new payment, while receiving another income support payment, or immediately after ceasing to receive another income support payment (s 12(1) Administration Act).
CONSIDERATION
The hearing took place on 8 May 2014. Mr Elliott represented himself at the hearing. Mr A Parker represented the respondent. Mr Elliott called one witness, Mr Cransbury, who attended the Tribunal and gave oral evidence. The Tribunal also received in evidence as exhibits a bundle of Centrelink documents including electronic summaries of Mr Elliott’s Centrelink computer records.
Mr Elliott gave evidence about the circumstances in which his friend, Mr Hogan, came to reside with him. In brief, Mr Hogan left the Eleanora Clinic, run by the Salvation Army, around Christmas 2012. Shortly thereafter, Mr Hogan resided with Mr Elliott. Evidence was given about the places in which they resided and the circumstances surrounding the accommodation. Mr Cransbury gave evidence. He is a friend of Mr Elliott and he also regards Mr Elliott as his carer. Mr Cransbury knew Mr Hogan. Mr Cransbury regarded Mr Elliott as Mr Hogan’s carer. At that time, Mr Cransbury was living elsewhere. The thrust of the evidence from Mr Elliott and from Mr Cransbury was that Mr Elliott provided care to Mr Hogan in his daily activities and he gave strong emotional support, mentoring and guidance. Mr Cransbury expressed his gratitude for the care which Mr Elliott provided in material and emotional support, both to him and to Mr Hogan. In correspondence to the Tribunal, Mr Elliott described himself as a spiritual healer (Exhibit A1)
There are inconsistencies in Mr Elliott’s case concerning the date when he commenced his role caring for Mr Hogan. The Carer Payment claim form mentions 29 January 2013 as the date when Mr Elliott commenced providing care to Mr Hogan (T5, p54). In the record of Mr Elliott’s conversation with the ARO, the commencement date is said to be 15 January 2013. It appears that Mr Elliott told the SSAT that he became carer for Mr Hogan on or around 1 January 2013. Mr Elliott’s hand-written claim form for Carer Payment issued on 17 April 2013 includes a date, namely 29 January 2013, as the date when care commenced (T5, p54). In evidence, Mr Elliott said that somebody else had put a figure 2 in front of the figure 9. That form is unsigned and undated. Mr Elliott acknowledges that his handwriting appears on the form. In the Carer Payment form Mr Elliott stated that he was providing care for Mr Anthony Hogan and care was provided at an address at Plympton. In his evidence to the Tribunal, Mr Elliott stated that Mr Hogan’s mother was receiving the carer’s payment at that time. In a written statement he also asserted that Mr Hogan’s mother was claiming the Carer Payment, although Mr Elliott was providing full time care.[1]
[1] Exhibit A1.
Mr Elliott says that there was an earlier claim form, allegedly lodged on 20 January 2013, which was also unsigned. There is no record of such a claim form. The claim form which Centrelink did receive includes a customer reference number. However Mr Elliott said in evidence that the customer reference number was forged by someone.
Mr Elliott asserts that Centrelink, together with those representing Centrelink, have continually failed to provide correct information about his alleged contacts with Centrelink between January and May 2013. In evidence, Mr Elliott asserted that he sent numerous emails to Centrelink during that period. He maintained that he contacted Centrelink during that time in various ways including attendances at Centrelink offices, telephone contacts, letters and face to face meetings with Centrelink staff. However, there is no documentary evidence of any emails between Mr Elliott and Centrelink. There are no copies of correspondence. There is no evidence of any notes and dates of meetings and conversations. By contrast, there is a considerable amount of documentary evidence of contacts between Centrelink and Mr Elliott on other income support matters. Those extensive records provide a narrative for the period in question. Within them, no reference can be identified to the communications which Mr Elliott suggested took place in the first five months of 2013.
In accordance with s 13 (1) of the Administration Act a claim can be taken to have been made on the day on which Centrelink was contacted if, on the date of contact the person was qualified for the payment and received written acknowledgement of the contact, and the written claim is lodged within 14 days from that contact.
The respondent submitted that the first recorded contact which Mr Elliott made with Centrelink regarding Carer Payment was on 17 April 2013. This was acknowledged in writing as Centrelink issued claim forms to Mr Elliott which was evidenced by Centrelink documentary records (Exhibit R2).
The respondent contended that the next relevant date was 23 May 2013 when Mr Elliott made contact with Centrelink and queried his eligibility for payment. Six days later Mr Elliott lodged the Carer Payment claim form on 29 May 2013.
Accordingly the respondent submitted that because Mr Elliott contacted Centrelink on 23 May 2013 and then lodged a Carer Payment claim on 29 May 2013, within 14 days of the last contact, it follows that 23 May 2013 is the earliest contact in that period.
It is clear that that the claim was not lodged within 14 days of the earlier contact with Centrelink on 17 April 2013. Section 13 (2) of the Administration Act provides that if a claim is not lodged within 14 days of the contact with the Department but is lodged within 13 weeks, the person is taken to have made the claim on the day of that contact if he or she or a person for whom he or she was caring had a medical condition which had a significant adverse effect on his or her ability to lodge the claim earlier.
Mr Elliott gave evidence about not lodging a claim earlier because Mr Hogan was unable to access a medical appointment and a medical report could not be obtained in a timely manner. Delays in obtaining a medical report could be problematic for prompt submission of the applicable documentation to Centrelink. Unfortunately, however, the explanations on this matter were unclear and confused as to dates and circumstances surrounding medical appointments. It is clear, however, that written medical information dated 23 May 2013 was provided by a Doctor, with Mr Elliott’s Carer Payment claim form lodged on 29 May 2013.
There is insufficient evidence for the Tribunal to conclude that the provisions for extended claim lodgement could be applied.
In certain cases of transfers between payments, s 12 of the Administration Act provides :
“(1)The Secretary may determine that, for the purposes of the social security law, a person is taken to have made a claim for an income support payment (the new payment), if:
(a)the person became qualified for the new payment while receiving another income support payment; or
(b)the person became qualified for the new payment immediately after ceasing to receive another income support payment.
(2)The person is taken to have made the claim for the new payment on the day specified in the Secretary’s determination. That day must not be earlier than:
(a)the day that is 13 weeks before the day on which the Secretary’s determination is made; or
(b)if the person became qualified for the new payment after the day referred to in paragraph (a) – the day on which the person became qualified for the new payment.”
Mr Elliott was receiving Newstart allowance at the time that he maintained Mr Hogan came into his care in January 2013.
The Tribunal notes that the Guide to Social Security Law states at 8.2.1 that:
“Apart from exceptional cases, a person must lodge a claim to transfer to DSP, SA or CP. This is because the claim procedures for these payments are designed to ensure specific qualification requirements are met.
Explanation: Exceptional cases are limited to vulnerable people. Vulnerable people are those who have a mental health condition and either lack insight into their mental health condition or live in a remote community with little or no access to health services.”
The respondent submitted that even if Mr Elliott’s circumstances were such that he could be found to be eligible for Carer Payment in January 2103, there was a lack of other objective evidence to confirm when Mr Elliott commenced caring for Mr Hogan. The Tribunal accepts the respondent‘s submission on this point.
The Tribunal considers that the specific requirements for an application to be a carer should be applied in this case to show whether or not Mr Elliott was eligible for Carer Payment at a particular point in time. The Tribunal does not consider that there is an appropriate basis for applying the discretion in s 12 of the Administration Act to conclude that an earlier claim has been made.
SUMMARY
The Centrelink records provide a sequential, logical summary of events throughout the period in question, and of particular relevance when Mr Elliott contacted Centrelink about Carer Payment on 17 April 2013, and thereafter.
The Tribunal concludes that there are no grounds on which to deem Mr Elliott to have made a claim on a date earlier than 23 May 2013.
The Tribunal considers that the decision of the ARO was correct. The Tribunal finds that the earliest date from which the Carer Payment could commence was 23 May 2013 because Mr Elliott had contacted Centrelink about the claim at that time and then lodged a claim in writing on 29 May 2013.
It is not expected and it is not required that Mr Elliott should retain records and notes of communications, regarding his care for Mr Hogan, between himself and Centrelink during the first few months of 2013. His case would have been strengthened, however, if there were at least some such records. Unfortunately, there were none.
DECISION
The decision under review is affirmed.
I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson ..........................[Sgd]..............................................
Administrative Assistant
Dated 2 July 2014
Date(s) of hearing 8 May 2014 Applicant In person Advocate for the Respondent Mr A Parker Solicitors for the Respondent Dept of Human Services
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