Roman Filonoff and Secretary, Department of Social Services
[2014] AATA 844
•11 November 2014
[2014] AATA 844
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/1344
Re
Roman Filonoff
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Professor R McCallum AO, Member
Date 11 November 2014 Place Sydney The Tribunal affirms the decision under review.
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Professor R McCallum AO, Member
Catchwords – Social Security – Carer Payment – whether claim for social security payment made – request for review more than 13 weeks after decision - date of entitlement - no early claim made - no power to back date payment – decision under review affirmed
Legislation
Social Security (Administration) Act 1999 (Cth) ss 11(1), 16(1) & (7), 13(3A), 41, 42, Sch 2, 109(2)
REASONS FOR DECISION
Professor R McCallum AO, Member
Background
The Applicant, Mr Roman Filonoff, is a caring and loving father. He has been receiving Carer Payments for his disabled son since 20 July 2012. The issue which I have to decide is whether the Applicant's Carer Payment should be backdated to a date earlier than 20 July 2012.
The facts in this matter may be briefly stated as follows. The Applicant submitted to Centrelink a Details of your Child's Care Arrangements form on 12 April 2011 and this form was signed by the Applicant and also by his former wife. The form notes that the Applicant has 55 per cent care of their son, while his former wife has 45 per cent care of their son. The Parramatta Centrelink office records show that the Applicant attended this office on 9 May 2011 and was given claim for Carer Payment and Carer Allowance forms. There are no records of the Applicant filing a claim at this time.
Almost one year later, that is on 15 April 2012, the Applicant made a claim for Carer Payment for his son, however, Centrelink rejected the claim on the grounds that the Applicant did not provide constant care to his son. I surmise that Centrelink relied upon the Details of your Child's Care Arrangements form which the Applicant had submitted on 12 April 2011.
On 20 July 2012, the Applicant submitted a further Details of your Child's Care Arrangements form signed by himself and by his former wife which stated that the Applicant now had one hundred per cent care of their son. On the same day, the Applicant also submitted a claim for Carer Payment and Carer Allowance. The claim for Carer Payment was accepted by Centrelink on 10 September 2012, and payment commenced from the date of his application, that is from 20 July 2012. In the letter which was sent to the Applicant on 10 September 2012, informing him that he would be granted Carer Payment, it was explained that if the Applicant disagreed with Centrelink’s decision he was to request a review within 13 weeks of being notified of the decision. The letter further explained that if the review request was lodged outside 13 weeks of being notified of the decision, any changes to his entitlement would only take effect from the date he requested the review.
Almost one year after Carer Payment was granted, that is on 18 August 2013, the Applicant asked for a review of the decision to grant Carer Payment from 20 July 2012, claiming that Carer Payment should have been paid from April 2011. On the same day the original decision maker affirmed the decision under review. On 12 September 2013, a Centrelink Authorised Review Officer affirmed the decision under review. In February 2014 the Social Security Appeals Tribunal (SSAT) agreed with Centrelink’s decision. This matter has now come before this tribunal.
The legislation
The relevant provisions are to be found in the Social Security (Administration) Act 1999 (Cth) (the Administration Act). However, the relevant provisions are not only complex, but are difficult to discover without a close reading of the entire statute.
Section 11(1) of the Administration Act deals with making claims for social security payments. It relevantly provides:
"...[A] person who wants to be granted:
(a) a social security payment;…
must make a claim for the payment...in accordance with this Division."Section 16 sub-sections (1) and (7) of the Administration Act relevantly provide:
“(1) A person makes a claim for a social security payment...:
(a) by lodging a written claim for the payment...; or
(b) by making the claim in accordance with subsection (7)....(7) A person may make a claim in a manner approved by the Secretary for the purposes of this subsection."
Thus applicants for social security payments must make written claims to Centrelink.
Section 13(3A) of the Administration Act is important because it obliges aspiring claimants to make claims in writing within thirteen weeks of contacting Centrelink. It is necessary to set out section 13(3A) in full. It provides:
"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."
Sections 41 and 42 and schedule 2 of the Administration Act deal with the start day of social security payments. Clause 3, Part 2 of Schedule 2 of the Administration Act provides:
"3 Start day-general rule
(1) 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."
These provisions operate in the following manner, (and here I leave out of account special circumstances provisions). At their simplest, if a person is qualified to receive a social security payment on the day that person makes a claim in writing for that payment, the date of commencement will be the day on which the person lodged the written claim. However, if a person is qualified to receive a social security payment on the day that person contacted Centrelink, the date of the commencement will be the day on which the person contacted Centrelink, if the following occurred. First, the person receives a written acknowledgement from Centrelink, and second, the person lodges a written claim within two weeks after receiving the acknowledgement. In any event, the person must lodge the written claim within thirteen weeks of contacting Centrelink.
Finally, section 109(2) limits the backdating capacity of decision reviewers, including this tribunal, where favourable decisions are made. Section 109(2) provides:
"If:
(a) a decision (the original decision) is made in relation to a person's social security payment; and
(b) a notice is given to the person informing the person of the original decision; and
(c) more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d) the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the application for review was made."
The evidence of the Applicant
Mr Filonoff gave sworn evidence and I found him to be a truthful witness. He was the only person to give oral evidence at the hearing.
The Applicant was born in Russia and emigrated to Australia some years ago. English is therefore not his first language, but he did not require an interpreter for the hearing.
The Applicant explained that his son, who was born in 1996, suffers from the genetic disorder known as Crouzome Syndrome which causes severe craniofacial abnormalities. The Applicant stated that his son has already undergone nine surgical procedures with five more to come. Mr Filonoff said that these medical procedures were expensive. He further explained that his son has graduated from school, and is going to stay home for a year or two unless his facial and cranial features, including his upper and lower jaws, are resolved. The Applicant and his wife separated in 2004 and were divorced in 2006.
The Applicant stated that he attended the Parramatta office of Centrelink on 14 January 2011 just before going to the airport to take his son overseas for surgery as he was required to lodge papers concerning his Newstart Allowance. He said that the Centrelink staff had not explained to him that he may be entitled to receive Carer Payment.
The Applicant spoke about the Details of your Child's Care Arrangements form which he submitted to Centrelink on 12 April 2011. He admitted that this form, which was signed by himself and his former wife, stated that he had 55 per cent of the care of their son, and that his former wife had 45 per cent care of their son. Mr Filonoff maintained that he thought the question relating to perecentage of care on the form was about carers’ financial contribution to the care of a child. He said he did not know that the question referred to the physical care of the child and he did not indicate on the form the days per week his son was in his care. Mr Filonoff said that his son has always been in his care for 100 per cent of the time.
Mr Filonoff explained that it was not until he attended the office of Centrelink in Merrylands that he understood that his claim for Carer Payment had been rejected because he had indicated on the Details of your Child’s Care Arrangements form that he shared the care of his son with his former wife. Mr Filonoff said he therefore proceeded to submit a new Details of your Child's Care Arrangements form on 20 July 2012 stating that he had 100 per cent care of his son, together with an application for Carer Payment which was granted from that date, that is from 20 July 2012.
The Applicant explained that owing to various personal matters and to the ongoing medical treatment of his son, he did not seek a review of the decision to grant him Carer Payment from 20 July 2012, until 18 August 2013.
Consideration
I find that there is no evidence that the Applicant made a written claim for Carer Payment before 15 April 2012, however, I further find that Mr Filonoff did submit a written claim for Carer Payment on 15 April 2012. This application was rejected by Centrelink because the Applicant had not provided a Details of your Child's Care Arrangements form stating that he was the sole carer of his son. I further find that the Applicant submitted a valid claim for Carer Payment on 20 July 2012. This application was accompanied by a Details of your Child's Care Arrangements form which stated that the Applicant had sole care of his son. Centrelink accepted this claim, and in accordance with the relevant provisions of the Administration Act, the start day for the receipt of Carer Payment was 20 July 2012, that is the day on which the Applicant submitted his valid application for Carer Payment.
Decision
For the above reasons I affirm the decision under review.
Section 109(2) of the Administration Act
Having regard to the arguments of the Respondent, I add for completeness, that even if I had set aside the decision under review, it would not have been valid for me to decide to award back pay to the Applicant. As the Applicant did not seek review of the original decision until almost a year later, section 109(2) of the Administration Act, which I have set out above, comes into operation. It forbids favourable decision-makers, including this tribunal from awarding back payments before the day on which applicants seek review of decisions, where that day is more than thirteen weeks after the date of the original decision.
I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member. ............................................
Associate
Dated 11 November 2014
Date of hearing 5 November 2014 Representative for the Applicant Self represented Representative for the Respondent Ms Kate Martini, Government Lawyer
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