SANDRA MARIE TENRAA and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 350

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 350

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5091

GENERAL ADMINISTRATIVE DIVISION		)
Re		SANDRA MARIE TENRAA

Applicant

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

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date15 May 2009

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Carer Allowance for young adult person – one-off bonus payment for  carers for 2008 – parent carer in receipt of Carer Allowance for child with a disability since child’s birth – fresh application for Carer Allowance required to  be lodged by carer when child attained the age of 16 years – application lodged late – Carer Allowance backdated to date of application – one-off bonus payment refused because of failure to lodge application when child turned 16 years – no discretion to pay the bonus – decision affirmed

Social Security Act 1991 s 992WD
Social Security (Administration) Act 1999 Schedule 2, clause 17

REASONS FOR DECISION

15 May 2009   Senior Member L Hastwell      

1.      Sandra Tenraa is the mother of Jordan, who suffers from cerebral palsy and who turned 16 on 10 May 2008.  She was not paid the one-off bonus payment for carers for the 2007/2008 financial year.

2.      Jordan was required to claim Disability Support Pension (DSP) in his own right from the date that he turned 16 years of age.  Ms Tenraa also had to make a fresh application for Carer Allowance for a young adult at the same time if she wanted her Carer Allowance for Jordan to continue.

3.      She had been in receipt of Carer Allowance since Jordan’s birth as he was born with his disability.

4.      Centrelink records indicate that Ms Tenraa made an application for Jordan’s DSP on 12 May 2008, but she did not make her own application for Carer Allowance for caring for an adult until June 2008.

5.      When she realised her Carer Allowance had stopped she contacted Centrelink and was told that she had not made application for Carer Allowance for an adult and must re-apply.

6.      She signed an application for Carer Allowance on 12 June 2008 and sent it to Centrelink.  It was received on 18 June 2008.  Centrelink agreed to backdate her Carer Allowance claim to the date that Jordon turned 16 by using a provision in the Social Security Act 1991 (the Act) which allows backdating where the disability is due to “an acute onset”. 

7.      She was not paid the one-off carer bonus of $600 that was payable to recipients of Carer Allowance who had made a claim for Carer Allowance on or before 13 May 2008.

8.      The respondent’s (the Department) decision that she was not entitled to the one-off bonus payment was affirmed by an Authorised Review Officer (ARO) on 8 August 2008.  She sought review to the Social Security Appeals Tribunal (the SSAT) and they affirmed the ARO’s decision on 25 September 2008.

9.      She seeks review of the SSAT’s decision to this Tribunal.

relevant legislation

10.     The relevant provisions are contained in the Act and the Social Security (Administration) Act 1999 (the Administration Act).

11.     The eligibility requirements for the 2008 one-off bonus payment for carers are contained in s 992WD of the Act in the following terms:

“992WD  2008 one-off payment to carers (carer allowance related)

(1)A person (the qualified person) is qualified for a 2008 one-off payment to carers (carer allowance related) if the following conditions are satisfied in relation to one or more instalments of carer allowance that have been paid to the person:

(a)      the instalment was in respect of a period that includes 13 May 2008;

(b)the reason why that instalment covered 13 May 2008 was not only because of clause 16 or 17 of Schedule 2 to the Administration Act;

(c)the person was paid that instalment because of a claim the person made on or before 13 May 2008.

(2)For the purposes of this Part, the instalment, or each instalment, in relation to which paragraphs (1)(a), (b) and (c) are satisfied is a qualifying instalment.”

12. Clause 17 of Schedule 2 to the Administration Act applies to Carer Allowance for a disabled adult in the following terms:

“17  Carer allowance for disabled adult

(1)      If:

(a)a person is qualified for carer allowance for a care receiver who is a disabled adult in circumstances where the disability affecting the adult is due to an acute onset; 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 in the circumstances mentioned in paragraph (a);

the person’s start day in relation to the allowance is the day on which the person became qualified for carer allowance in the circumstances mentioned in paragraph (a).

(2)      If:

(a)a person is qualified for carer allowance for a care receiver who is a disabled adult in circumstances where the disability affecting the adult is due to an acute onset; 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 in the circumstances mentioned in paragraph (a);

the person’s start day in relation to the allowance is the first day of the period of 12 weeks ending immediately before the day on which the claim was made.”

facts that are not in dispute

13.     Ms Tenraa was in receipt of Carer Allowance with respect to Jordan from his date of birth until he turned 16 on 10 May 2008.

14.     Centrelink sent her a letter dated 11 February 2008 which included advice about her entitlement to Carer Allowance for Jordan in the following terms:     

“Usually, Carer Allowance stops once a child turns 16. 

You can be paid Carer Allowance for Jordan once he turns 16 but you need to apply to be assessed as caring for an adult. …”

15.     She was paid Carer Allowance for Jordan until 9 May 2008.

16.     As a result of a contact she made with Centrelink on 28 April 2008, she received a letter dated that same date which enclosed a number of fact sheets about payment rates.

17.     On 2 May 2008, she received a further letter from Centrelink stating as follows:

“Centrelink wrote to you on 11 April 2008 about your Carer Allowance for Ashlea Tenraa and Jordan Tenraa.  This letter asked you to contact Centrelink to discuss your circumstances. 

Our records show that you have not contacted us.  This information is needed to continue paying you Carer Allowance.”

18.     On 12 May 2008, she lodged a notice of intention to apply for DSP on Jordan’s behalf.  Jordan received DSP in his own right as a young adult from that date.

19.     When her Carer Allowance payments ceased, she contacted Centrelink and was advised to make the application for Carer Allowance for a young adult.  She then filled in the form to apply for payment of Carer Allowance for Jordan.  She signed that form on 12 June 2008 and posted it to the Department.  It was stamped as received by the Department on 18 June 2008.

20.     She was not paid the 2008 one-off bonus payment to carers of $600 with respect to her care of Jordan.

issue

21.     The issue is this case is whether Ms Tenraa is entitled to receive the 2008 one-off bonus payment to carers for her care of Jordan.  This requires a consideration of whether the payment of Carer Allowance to Ms Tenraa for Jordan in respect of the period that included 13 May 2008 related to a claim for Carer Allowance made by her on or before 13 May 2008.

ms tenraa’s explanation to the tribunal as to the events surrounding her application for carer allowance

22.     Mr Tenraa has five children, two of whom are disabled.  Her 21 year old daughter, Ashlea, has Downs Syndrome and Jordan has cerebral palsy.  She does not have a partner and she is reliant on her own income as a school support assistant and on Centrelink payments to support herself and her remaining dependent children. 

23.     She works on a contract basis and she is not paid for holidays.  Her contracts are usually renewed annually, depending on the availability of work.

24.     Ms Tenraa has been paid Carer Allowance for both Jordan and his sister, Ashlea, since they were born.

25.     She is adamant that she has no record of receiving a letter from Centrelink dated 2 April 2008 which provided her with information about the need to re-apply for Carer Allowance once Jordan achieved the age of 16 years. 

26.     She does acknowledge receiving subsequent correspondence, including correspondence of 28 April 2008 and 2 May 2008 which raised the issue that forms needed to be filled in and further information was required to continue paying her Carer Allowance once Jordan turned 16 in May 2008.

27.      In May 2008 she lodged what she understood were all the forms that she needed to lodge to continue Jordan’s allowances once he achieved the age of 16 years.  She acknowledges that it appears that she lodged only an application for DSP and for a concession card for Jordan, but she did not lodge the application for Carer Allowance in May of that year.

28.     She cannot explain this oversight and she is adamant that she filled in and sent back to Centrelink all the forms that they had provided to her.

29.     She acknowledges her signature on the claim form for Carer Allowance which was dated 12 June 2008 and received by Centrelink on 18 June 2008.

30.     She received a payment of Carer Allowance for Jordan backdated to 12 May 2008.  She did not receive the one-off bonus payment for carers for 2008 from the Government.  She asks the Tribunal to see if there is any basis on which she can receive that payment.

31.     She believes that she did everything that she was required to do by the Department to comply with the requirement to lodge forms when Jordan turned 16 and finds it difficult to understand why the legislation is set up in such a way that she has now missed out on this payment.  She did receive the one-off payment for Ashlea.

other available evidence

32.     At the hearing, the Tribunal asked the Department to provide some further documents and in particular, to provide copies of the documents that were sent to Ms Tenraa under cover of the letter of 28 April 2008.

33.     Those documents were subsequently received by the Tribunal.  The Tribunal notes that the documents included with the letter of 28 April 2008 were noted in that letter as being  fact sheets about various allowances, including Carer Payment and Carer Allowance.

34.     A brief computing record of her contacts with the Department in April refers to claims/forms being issued on that date.  It is not clear whether on that date she was also sent forms to apply for any allowances.

35.     She had some further contacts with the Department in May and in particular there is a record of her making a contact with the Department on 12 May 2008.  The record of that meeting reads as follows:

“Customer contacted Modbury on 12 May 2008 regarding General Enquiry for Carer Allowance. Information was obtained via Personal – In Office. Document created by H2K on 12 May 2008.

Correspondence lodged at MOD on 12/5/2008 as follows:

SC236 (two forms: Ashlea and Jordan).”

36.     Letters were sent to Jordan by Centrelink on 22 May 2008 confirming that on 12 May 2008 he lodged notice of his intention to claim DSP and Mobility Allowance (T4 and T6).  Ms Tenraa in fact lodged those documents on his behalf.

discussion of the evidence

37.     There is no evidence that Ms Tenraa filed her application for Carer Allowance before 18 June 2008.  The fact that she signed a claim form on 12 June 2008 makes it highly improbable that she lodged an earlier claim in May.  If she had lodged an earlier claim, she would have been querying the Department as to why she was being required to lodge another claim.

38.     It seems more probable than not that that the forms lodged on 12 May 2008 were with respect to Jordan’s intention to claim DSP and Mobility Allowance.

findings of fact

39.     The Tribunal makes the following findings in addition to the matters already set out in paragraphs 13 to 20 hereof.

40.     Ms Tenraa did not lodge an application for Carer Allowance for Jordan until such time as that application was received by the Department on 18 June 2008.

41.     The “acute onset” provision was used by a Centrelink officer to backdate her Carer Allowance to the date that it had been stopped.

42.     It was an oversight on Ms Tenraa’s part that the application for Carer Allowance was not lodged on or before 13 May 2008.

consideration and application of the law

43.     The law in this matter is very clear.  

44. Section 992WD of the Act is very specific in its terms and provides that a person is qualified for the 2008 one-off payment (known as the Carer Allowance bonus) if an instalment of Carer Allowance was paid to the person for a period that included 13 May 2008 and the reason that the instalment covered 13 May 2008 was not because of the backdating provision contained in Clause 17 of the Administration Act (paragraph 12).

45. It is clear in this case that the reason that Ms Tenraa received a payment of Carer Allowance for the period covering 13 May 2008 was because the backdating provisions of Clause 17 were used to enable a backdating of the allowance to the date that Jordan turned 16. It appears that a Departmental officer used this provision to ensure that she had no loss of her Carer Allowance due to the late lodgement of the form.

46. There is no discretionary provision in the legislation with respect to the one-off bonus and Ms Tenraa is therefore excluded by virtue of s 992WD of the Act from receiving the one-off bonus payment as the only reason she received the backdating of the Carer Allowance was because of Clause 17.

47.     It is regrettable that for whatever reason she did not make the application in time.  It was clearly not a deliberate omission.  She has two disabled children and had a number of forms to fill in and return to Centrelink in May 2008 relating to Jordan’s application for DSP.  She is under pressure in managing her children and also coping with  pressures of work.

48.      She genuinely believed that she had made all relevant applications.  Had she lodged her application for Carer Allowance at the time that she lodged Jordan’s application, she would  have received the one-off bonus payment as her entitlement to Carer Allowance continued beyond his 16^th birthday.  It is  because of  the way in which the legislation is set up that she misses out on the bonus even thought the intent of the Budget measure in question was to assist people in her position.

49.     The Tribunal suggested that she may consider exploring the possibility of applying for an Act of Grace payment if she wanted to take the matter further, but the Tribunal advised her that it had no jurisdiction in that regard and could make no comment on the likelihood of the success of such an application.

50.     The Tribunal affirms the decision under review.

I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         .....................................................................................
  Associate

Date of Hearing  21 April 2009
Date of Decision  15 May 2009
Advocate for the Applicant       Self-represented

Advocate for the Respondent   Mr A Parker
  Centrelink Legal Services & Procurement      Branch