SANSOME And SECRETARY,DEPARTMENT OF FAMILY ANDCOMMUNITY SERVICES

[2005] AATA 829

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 829

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/1087

GENERAL ADMINISTRATIVE  DIVISION

Re:         WILLIAM ARTHUR SANSOME

Applicant

And:       SECRETARY,
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:             26 August 2005

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

SOCIAL SECURITY – carer allowance –  start date ‑ whether backdating possible – decision affirmed

Social Security (Administration) Act 1999 ss 11(1), 13 (1), 13(2), 13(3A), 16

Ryde v Secretary, Department of Family and Community Services [2005] FCA 866

REASONS FOR DECISION

26 August 2005  Regina Perton, Member

1.      William Sansome (the applicant) disagrees with Centrelink, whose officers act as delegates of the Secretary to the Department of Family and Community Services (the respondent) (the Secretary), about the date from which he should have received carer allowance.  On 11 March 2004, a Centrelink officer decided that the applicant would be paid carer allowance from 6 January 2004.  An authorised review officer (ARO) of the respondent affirmed the decision as did the Social Security Appeals Tribunal (SSAT) on 26 August 2004. 

2.      At the hearing on 19 April 2005, the applicant represented himself.  Mr Wayne Zita, a Centrelink advocate, represented the respondent.

3.      The documentary evidence before the Tribunal included the T documents lodged by the respondent under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T14) and further documents provided by the applicant at the hearing, which were tendered and marked Exhibit A1 and A2.

BACKGROUND

4.      The applicant, who was born on 8 April 1940, is providing full‑time care for his wife, Pauline Sansome.  Mrs Sansome suffers from a number of conditions which leave her in constant pain and affect her mobility and ability to take care of herself and the household.  Her condition is such that a carer is required and the applicant has taken on that role.

5.      On 30 September 2003, Centrelink received a letter from Mrs Sansome dated 29 September 2003 (Exhibit A2) which she described as an official and formal application for a carer allowance to enable me to be looked after.  No information was provided as to the identity of the carer.  On 8 October 2003, Centrelink wrote to Mrs Sansome confirming her contact and advising her that if she returned a completed claim form on or before 15 October 2003 and was eligible for the payment sought, it would be backdated to 1 October 2003. 

6.      Centrelink records indicate that it received a further letter from Mrs Sansome on 29 October 2003 concerning a claim for carer allowance.  On 7 November 2003, Centrelink wrote to the applicant confirming that he had contacted it on that day and advising him that if he completed an enclosed form by 21 November 2003, carer allowance would be paid from 7 November 2003.  On 21 November 2003, Centrelink received a third letter from Mrs Sansome in which she stated that, based on a response to her complaint to the Ombudsman, it was her understanding that Centrelink was processing her claim for carer allowance lodged on 29 September 2003 and that she wished to know about its progress. 

7.      On 24 November 2003, Centrelink responded to Mrs Sansome’s letter of 21 November 2003 advising her that no claim had been lodged in her name and enclosing a further claim package.  Centrelink also wrote to the applicant on that day confirming his telephone contact with it and advising him that he was required to complete the enclosed claim package to receive carer allowance.  He was advised that if the form was returned by 8 December 2003, carer allowance would be payable from 24 November 2003.  The envelope and contents were returned to Centrelink unopened on 3 December 2003.  Following a telephone conversation on 15 December 2003, Centrelink sent a further claim package to the applicant stating that he qualifies for the payment; and that 15 December 2003 would be used as his claim date if a completed claim was returned by 29 December 2003. 

8.      On 5 January 2004, the Commonwealth Ombudsman’s Office contacted Centrelink regarding a dispute over another matter, as well as the claim for carer allowance.  Following a telephone conversation with the applicant on 6 January 2004, Centrelink sent him a further letter and claim form, advising him that if he lodged the completed form by 20 January 2004, the payments could be backdated to 6 January 2004.  On 14 January 2004, the applicant lodged a completed claim form for carer allowance.  On 11 March 2004, Centrelink informed the applicant that he had been granted carer allowance with back payment to 6 January 2004.

9.      The applicant was unhappy with the commencement date of 6 January 2004, arguing that it should have been paid from September 2003 and wrote to Centrelink in late April 2004 expressing his concern.  A senior Centrelink officer responded on 31 May 2004 advising that the claim could not be backdated further than 6 January 2004 as no claim form had been lodged until 14 January 2004.  The applicant sought review of the decision and on 23 July 2004, an ARO affirmed Centrelink’s decision to commence payment of carer allowance as from 6 January 2004.

10.     On 3 August 2004, the applicant applied for review to the SSAT.  On 26 August 2004, the SSAT affirmed the previous decisions as to the commencement date.  On 22 September 2004, the applicant lodged an application with the Tribunal.

11.     The issue before the Tribunal is whether the start date for the payment of carer allowance should be earlier than 6 January 2004. 

EVIDENCE

12.     The applicant described the difficulties he has encountered in dealing with Centrelink over a number of matters, over a considerable period of time.  He raised concerns about Centrelink's failure to provide claim forms to his wife, despite the computerised record indicating claim forms had been sent out; and concerns about Centrelink’s record‑keeping and responsiveness in general.  He also said that Centrelink officers provide inconsistent advice over the telephone.

13.     The applicant stated that Centrelink should have accepted his wife’s letter of 29 September 2003, a copy of which he tendered (Exhibit A2), as a claim for carer allowance as she was explicit in stating that it was she who needed the care.  He said that Centrelink’s response to his wife (dated 8 October 2003) was a single page and was not accompanied by a claim form.  The applicant described the contents of his and his wife’s correspondence with Centrelink in the months following and the telephone conversations that took place.  He also provided a copy of a response from the Commonwealth Ombudsman’s Office to a complaint about Centrelink, made by his wife on 7 November 2003, which he submitted was an indication that his wife’s claim was being processed when it turned out that was not so. 

CONSIDERATION OF THE ISSUES

14. Section 11(1) of the Social Security (Administration) Act 1999 (the Administration Act) provides that a person must make a claim for a social security payment to be eligible for that payment. Section 16 of the Administration Act sets out the steps involved in making a claim. It requires that a written claim be lodged which must be in accordance with a form approved by the Secretary. 

15.     The applicant submitted that Mrs Sansome’s request, in her letter of 29 September 2003, that she be paid a carer allowance, given her need for care, constituted a claim and that the payment should be backdated to that date.  Mrs Sansome’s letter did not mention the identity of the carer nor was it in the form approved by the Secretary.  The Tribunal finds that the letter did not constitute the applicant’s claim for carer allowance.  The applicant and Mrs Sansome engaged in further written and telephone contact with Centrelink between 29 September 2003 and 14 January 2004, when the completed claim form, as prescribed by the Secretary, was lodged.  The Tribunal finds that the applicant did not lodge a claim form until 14 January 2004.

16. Section 13(1) of the Administration Act provides a mechanism for deeming that the day on which a person lodges a claim can be the day that the person contacts Centrelink provided certain conditions are met:

13.(1)  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 within 14 days after the Department is contacted;

the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.

17. Centrelink sent three letters to the applicant: on 7 November 2003, 24 November 2003 and 15 December 2003, in which it advised that the start date for carer allowance, if he qualified, would be the date of contact, provided the claim forms were lodged within 14 days. The applicant gave evidence that the forms did not accompany the first letter and the second letter was returned to Centrelink unopened. The claim form accompanying the third letter was not completed and lodged within the stipulated period. The Tribunal finds that the applicant did not respond within 14 days to the invitations in the letters sent on 7 November 2003, 24 November 2003 and 15 December 2003 to lodge a claim form. The Tribunal finds that it cannot backdate the payments to any of those dates pursuant to s 13(1), as the applicant did not meet the requirement set out in s 13(1)(d) of the Administration Act.

18. There are limited circumstances, set out in s 13(2) and s 13(3) of the Administration Act, where a claim can be lodged up to 13 weeks after contact is made; namely where an applicant’s medical condition and/or the medical condition of the person for whom the applicant is caring prevents the applicant from lodging a claim. However, in this instance, there is no evidence to suggest that the form was not lodged until 14 January 2004 for such a reason.

19. Section 13(3A) of the Administration Act allows a claim to be backdated up to 13 weeks after the applicant contacted Centrelink, where the decision‑maker is satisfied that, in the special circumstances of the case, it was not reasonably practicable for the person to lodge the claim earlier. For the Tribunal, or an earlier decision‑maker, to use the discretion provided in s 13(3A), it must be satisfied that there is something to make the case stand out from the usual or the ordinary. In Ryde v Secretary, Department of Family and Community Services [2005] FCA 866, Branson J held that the use of the term special circumstances in the legislation demonstrated an intention to proscribe waiver in ordinary cases. Branson J was considering s 1237AAD of the Social Security Act 1991, which involves consideration of special circumstances in relation to waiver of a debt to the Commonwealth; but her comments appear pertinent to other provisions in the Act where there is discretion to take special circumstances into account, such as s 13(3A) of the Administration Act. Branson J went on to state that the hardship or unfairness should be sufficient to justify departure from the general rule in the particular case.

20.     The Tribunal is not convinced that the applicant’s failure to lodge a claim form within 14 days of the Centrelink letters sent out in November and December 2003 should be considered special circumstances.  Centrelink informed the applicant of the requirement to lodge a form within 14 days of the contact for a particular start date to apply. However the applicant consciously chose to follow a different path, namely that Mrs Sansome’s  letter of 29 September 2003 constituted a claim for the allowance.       

21. As stated above, s 13(1) of the Administration Act prescribes the start date unless the subsequent exceptions apply. The Tribunal has found that those exceptions are not applicable in this case. The Tribunal finds that the appropriate start day for carer allowance payments is the day on which the applicant made contact with Centrelink, after which Centrelink sent him a letter specifying that the claim form must be lodged within 14 days from that contact date, namely 6 January 2004, for payments to be made from that date.

22.     For these reasons the Tribunal finds that the earliest date on and from which the applicant could be paid carer allowance is 6 January 2004.

DECISION

23.     The Tribunal affirms the decision under review.

I certify that the twenty-three [23] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       (sgd) Olympia Sarrini

Clerk

Date of hearing:  19 April 2005

Date of decision:  26 August 2005
Advocate for the applicant:          Self-represented
Advocate for the respondent:       Mr Wayne Zita, Centrelink