Richardson and Department of Family and Community Services - [2001] AATA 682

DECISION AND REASONS FOR DECISION [2001] AATA 682

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/391

GENERAL ADMINISTRATIVE DIVISION          )
           Re      CHERYL RICHARDSON
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date13 July 2001
PlaceMelbourne

Decision      The decisions under review are affirmed.
  ........Sgd. Mr J. Handley …......
  Senior Member
CATCHWORDS
Social Security - Applicant received wife pension from 1990 - in 1999 transferred to carer payment - in 2000 ceased eligibility and denied wife pension - whether 'transferred' - whether wife pension status preserved - decision affirmed.

REASONS FOR DECISION

13 July 2001 Mr J. Handley, Senior Member

The applicant applies to review decisions of the Social Security Appeals Tribunal ("SSAT") made on 27 February 2001. The SSAT then decided to affirm decisions made by an Authorised Review Officer ("ARO") of the respondent on 18 December 2000 who refused the applicant's request to be transferred from carer payment to wife pension and a decision that she was ineligible for wife pension.
The hearing was convened in Bendigo. Mrs Richardson appeared without representation. Mr Baker appeared on behalf of the respondent.
A number of documents were received into evidence and will be referred to in this decision.
The circumstances giving rise to this application may be briefly summarised as follows.
Mrs Richardson was in receipt of wife pension from 15 February 1990 by reason of her husband having been granted Disability Support Pension (DSP).
In 1999 Mrs Richardson learnt of the availability of a carer payment and made an enquiry through the respondent's telephone enquiry service. The enquiry was made because Mrs Richardson was then caring for her elderly ill mother.
On 16 November 1999 Mrs Richardson lodged an application for carer payment together with a medical certification in support of the need for her mother to be under care. The application was granted and carer payment was paid from 22 November 1999. Mrs Richardson said that she was advised by a Centrelink officer that she would be transferred from wife pension, to carer payment. However, she said she was not told that should her mother move to a hospital or nursing home in the future, at which point her mother would no longer be under her care, she could not qualify for wife pension. Further to this, Mrs Richardson said she was encouraged to apply for carer payment because she could qualify for a bereavement allowance in the event of her mother's death whilst still in her care.
Payments thereafter continued until 18 December 2000 when the applicant advised Centrelink that she was no longer caring for her mother. This was because the applicant's mother moved to a retirement unit in Ballarat on 13 December 2000.
Having notified the Department that she was no longer eligible for carer payment Mrs Richardson applied for re-instatement of wife pension. She was then told that she had no entitlement to it.
The applicant submitted that she was told by a Centrelink officer on 8 September 2000 that wife pension had been abolished in 1995 but she would remain eligible, should she claim at a later time, because she was born before 1955.
When the applicant was advised that she could not qualify for wife pension, she notified a counter officer that she intended to appeal and a referral was made immediately to an ARO. The ARO subsequently affirmed the decision to deny wife pension by a letter erroneously dated 11 January 2000 (correct date should be 11 January 2001).
Mrs Richardson confirmed that she had never been notified in writing that her entitlement to wife pension was preserved because she was born before 1955, but said that she had been notified of this in November 1999 before her claim for carer payment was made. She also confirmed that she had a discussion concerning this issue with a friend, who in disbelief (she said) also rang the respondent's telephone enquiry service and was also notified that persons born before 1955 were entitled to preservation of wife pension.
The applicant has received partner allowance since December 2000. She said she has lodged this appeal because partner allowance is a lesser rate than wife pension and has no entitlement to concessions for telephone and transport. More particularly Mrs Richardson is concerned because she feels as if the decision made by Centrelink is a "punishment" because she elected to receive carer payment whilst she looked after her mother. She is also unhappy because she was not advised that wife pension had been abolished in 1995 and was not advised of this when she was transferred from wife pension to carer payment in 1999.
Warren Smith
Mr Smith is a member of the retirement and disability group within the Centrelink office at Bendigo. He has been an employee of the former Department of Social Security and subsequently employed by Centrelink for a combined period of 24 years. He was a member of the Bendigo office in 1999 when Mrs Richardson made her application for carer allowance.
He was the author of a memorandum found at T-8, p. 58 and dated 22 November 1999. Mr Smith confirmed that the document was completed by him following an interview he conducted with Mrs Richardson. He did not recall the interview or Mrs Richardson.
Mr Smith confirmed that the transfer of persons from wife pensions to other benefits was controversial and caused some disquiet amongst persons who were formerly in receipt of wife pension. He said the legislation was changed in 1995 to abolish wife pension and thereafter persons were transferred to other benefits. He said it was his procedure to explain other pensions and benefits and the advantages and disadvantages of the other pensions and benefits. He said it was not his practice to make recommendations but allowed claimants to make decisions as to an applicable pension or benefit.
His attention was drawn by Mr Baker to an entry in the document which reads as follows-
"Eligible to both carer payment and allowance. Discuss transfer to carer payment Re bereavement. Also loss of saved status of wife's pension. Customer requested transfer to carer payment".
Whilst not having any recall of the interview Mr Smith said that these notes indicated to him that he had a discussion with Mrs Richardson of the alternative to wife pension and that she would lose the entitlement to wife pension should she elect to transfer to carer payment.
In cross-examination from Mrs Richardson, Mr Smith confirmed that he did complete a number of forms in order to process her claim for carer payment but it was his practice and that of others, to not show those forms to the claimant. He said it was standard practice to make notes during interview and complete official Centrelink forms at a later time.
He said his practice was to make notes during an interview on plain paper and use those notes for the purposes of completing official documentation at a later time. Once documentation is completed the notes that he has made are destroyed. He said the memorandum at T-8 p.58 was recorded to preserve a paper copy of the notes of discussion on 22 November 1999 in the event that there was an audit of the electronic systems within Centrelink or as a "backup". Mr Smith said that his practice was to complete pension applications wherever possible on the same day of interview. He said that there are a maximum of 8 interviews conducted per day, not necessarily involving only carer pensions. Wherever possible the interviews are listed on the hour and he would interview a claimant and complete the application in the absence of the claimant within the hour.
Conclusion & Reasons For Decision
As a fact I am satisfied as follows-

The applicant was in receipt of wife pension from 15 February 1990.
On 16 November 1999 the applicant lodged a claim for carer allowance/carer payment, which was granted with effect from 22 November 1999.
The applicant ceased to care for her mother in December 2000 and on 15 December 2000 made an application for wife pension.
The respondent cancelled carer allowance having been advised that the applicant no longer cared for her mother and granted partner allowance form 18 December 2000.
The Legislation

S.146V(1)(a) of the Social Security Act 1991 ("the Act") provides-
"S.146V(1)…. a woman is not to be granted a wife pension unless:
(a) her claim for the pension was lodged on or before 30 June 1995 and she qualified for the pension on or before that date; or
……."

S.12(1) & (2) of the Social Security (Administration) Act 1999 ("the Administration Act") provides-

"S.12(1) Subject to subsection (3), if:
(a) a person is receiving an income support payment; and
(b) while receiving the payment, the person becomes qualified for another income support payment (the other payment) and
(c) the Secretary determines that the person is to be transferred to the other payment;
the person is taken, for the purposes of the social security law, to have made a claim for the other payment on the day on which the person became qualified for the other payment.
(2) Subject to subsection (3), if:
(a) a person who has been receiving an income support payment ceases to receive the payment; and
(b) immediately after ceasing to receive that payment, the person becomes qualified for another income support payment (the other payment); and
(c) the Secretary determines that the person is to be transferred to the other payment;
the person is taken, for the purposes of the social security law, to have made a claim for the other payment on the day on which the person became qualified for the other payment."

The Social Security (Administration) Act contains a number of provisions, which previously existed in the Social Security Act 1991. It commenced on 20 March 2000. The words 'income support payment' are defined in the Social Security Act 1991 at s.23(1) as follows-
""income support payment" means a payment of:
(a) a social security benefit; or
(aa) a job search allowance; or
(b) a social security pension; or
(c) a youth training allowance; or
(d) a service pension"

(For the purposes of this definition I am satisfied that a wife pension and a carer payment are each an 'income support payment').

The effect of these sections is that a woman is not to be granted wife's pension unless her claim for it was lodged before 30 June 1995 and she was qualified for it before that date. (S.146V of the Act). However, this section is modified by s.12 of the Administration Act. So far as it applies in the present case, the wife pension being paid to Mrs Richardson in 1999 ceased. She then became qualified for carer payment. The ARO, being a delegated person under s.125 of the Administration Act determined that Mrs Richardson be transferred to carer payment. A claim for carer payment is then deemed to have been made.
The applicant lost her status as eligible for wife pension when she claimed carer payment. To thereafter recover wife pension, she would need to claim it, again, but this is not possible by the provisions of s.146V of the Act. That is to say, any subsequent claim could not be "lodged on or before 30 June 1995". (S.146V of the Act).
Mrs Richardson said that she was notified by Centrelink staff that her entitlement to wife pension would be preserved because she was born before 1955. There is no legislative provision preserving such an entitlement. It would appear (having read the reasons for decision of the Social Security Appeals Tribunal) that there was a view prevailing amongst some persons that such a preservation of entitlement did exist having regard to a discussion paper published by the Government of the day in or about 1995. It would also appear however that the content of the discussion paper did not ever become law and certainly has not ever become part of the Social Security Act. As a matter of law no such preservation to entitlement has ever existed nor exists at the present time.
I doubt in any event that that advice, given, would give rise to any application against the respondent for defective advice because it would appear from the memorandum completed by Mr Smith on 22 November 1999 that he did discuss the consequences of ending wife pension preparatory to processing her application for carer payment. I am satisfied that Mr Smith is a witness of truth, that his notes were contemporaneously made and were consistent with the discussions that he had with Mrs Richardson. It would appear that he did advise her that a consequence of being paid carer payment would be that she could not be paid carer payment at the same time as wife pension and a transfer to carer payment would prohibit any future claim for wife pension. Mrs Richardson acknowledged this advice (refer para 17 earlier).
I have made these findings based on the documents provided by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 having observed Mr Smith in evidence. I prefer his written notes as being more accurate and reliable than memory recall by Mrs Richardson more than 18 months after the interview of November 1999.
It follows therefore that the decision to grant carer pension was properly made and the consequent decision to refuse wife pension was also properly made.
The decisions under review are affirmed.
Recommendation
Mrs Richardson on a number of occasions during the hearing queried the absence of a practice within Centrelink of officers disclosing papers prepared when claims are processed. She said that the contents of documents may either be erroneous or there is an absence of the claimant acknowledging the contents of the forms being accurate.
In the present case – whilst I have no quarrel with the practice adopted by Mr Smith concerning his procedures at interview and the subsequent processing of applications – I cannot help but wonder whether disputation or the risk of it may be eliminated or reduced if a common understanding or agreement is reached between claimants and Centrelink staff as to the benefit being sought and the entitlement.
I would have thought that this could easily be achieved by having a standard form where summarised notes are made and where both claimant and Centrelink officer sign the form to acknowledge the benefit claimed and the consequences – if any, of the benefit claimed being paid.
I am aware in recent years that Centrelink has made a considerable investment in customer relations. I wonder whether the above observations might be considered so as to further enhance the relationship between Centrelink and the welfare community.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.
Signed:         ........C..Irons..........................................................
  Secretary
Date/s of Hearing  25 June 2001
Date of Decision  13 July 2001
Counsel for the Applicant        unrepresented
Solicitor for the Applicant
Counsel for the Respondent    Mr T. Baker - Departmental Representative
Solicitor for the Respondent