Scutter and Secretary, Department of Family and Community Services

[2005] AATA 604

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 604

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2004/346

GENERAL ADMINISTRATIVE  DIVISION		)
Re		YVONNE SCUTTER

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date27 June 2005

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

(Signed)

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Carer Allowance – backdated 26 weeks –  entitlement to one-off bonus payment for carers announced on 11 May 2004 – decision affirmed

Social Security (Administration) Act 1999 s 13(1), Schedule 2 clause 17(2)

Social Security Act 1991 s 992N

REASONS FOR DECISION

27 June 2005   Senior Member L Hastwell       

1.      Yvonne Scutter (the applicant) lodged a claim for Carer Allowance on 18 May 2004.  Carer Allowance was granted backdated originally to 12 May 2004, but after an appeal to the Social Security Appeals Tribunal (the SSAT) it was backdated for 26 weeks, and became payable from 12 November 2003.  In the original decision,  she had been refused the one-off bonus payment for carers, which had been announced on Budget night, 11 May 2004.  The SSAT affirmed that aspect of the decision on 10 September 2004.  The applicant seeks a review of that decision.

legislation

2. The legislation is contained in s 13(1) and Schedule 2 clause 17(2) of the Social Security (Administration) Act 1999 (the Admin Act) and s 992N of the Social Security Act 1991 (the Act). 

Section 13(1) of the Admin Act provides:

“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.”

Schedule 2 clause 17(2) of the Admin Act provides:

“17(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 26 weeks after the day on which the person became qualified for the allowance in the circumstance mentioned in paragraph (a);

the person’s start day in relation to the allowance is the first day of the period of 26 weeks ending immediately before the day on which the claim was made.”

Section 992N of the Act provides:

“992N(1)A person (the qualified person) is qualified for a 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 included 11 May 2004;

(b)the reason why the instalment covered 11 May 2004 was not only because of clause 16 or 17 of Schedule 2 to the Social Security (Administration) Act 1999.”

issues for consideration

3. The issue for determination is whether under s 992N of the Act the applicant is a qualified person for the purposes of the one-off bonus payment to carers.

discussion of the evidence

4.      The applicant represented herself and appeared by telephone link-up.  Ms Powell, a Departmental advocate, represented the Department.  The T documents were received into evidence as Exhibit A1. 

5.      The applicant’s evidence was that she had telephoned Centrelink on 12 May 2004 after hearing of the one-off bonus payment for carers in the Budget, and becoming aware that she may have an eligibility, not only for the one-off bonus payment, but also for Carer Allowance.  Her husband has been very ill for many years, and he has been in receipt of a Disability Support Pension since 1983.  She was told by the person that she spoke to that she would qualify for the one-off bonus payment.  She made application for Carer Allowance.  She was initially granted a payment of Carer Allowance from 12 May 2004.  That was then backdated because of the acceptance by the SSAT that her husband’s decline in function was brought on by an acute event.

6.      The applicant received the back payment, but she did not receive the one-off bonus payment for that year that had been announced on Budget night 2004.  She did not feel that this was fair, and particularly so as she had been verbally advised by the person to whom she initially spoke at the Department that she would receive the one-off bonus payment.  She said that her husband has been ill for many years, and that she had probably been eligible long before she actually applied for the Carer Allowance.  She said she spends a great deal of her time caring for his needs, and was not aware of her eligibility until she heard of the allowance on Budget night. 

7.      The applicant has applied for Compensation for Detriment caused by Defective Administration (CDDA) with respect to the matter.  This claim has not yet been resolved, and was pending the outcome of the hearing before the Tribunal.

department’s case

8. The Department’s case was that although incorrect advice may have been given to the applicant (which was not necessarily conceded by the Department), the legislation precluded payment of the one-off bonus payment, in particular because of the provisions of s 992N of the Act and Schedule 2 clause 17(2) of the Admin Act. This was because the applicant’s eligibility to ultimately receive Carer Allowance on 11 May 2004 was because of the backdating provision in Schedule 2 clause 17(2)(a) of the Admin Act.

consideration

9.      The applicant was straightforward in giving her evidence.  She acknowledged that it was quite possible that she was precluded from receiving the one-off bonus payment, but she felt she had an entitlement because of the incorrect information given to her by the Department.

10.     The Tribunal makes the following findings:

·The applicant made contact with the Department on 12 May 2004, and made application on that date for Carer Allowance.

·The applicant believes that the Departmental officer that she spoke to on 12 May 2004 advised her that she would be eligible for the one-off bonus payment that had been announced in the Budget on the previous evening.

·The applicant was granted Carer Allowance, which was subsequently backdated for 26 weeks, so that she was being paid Carer Allowance on 11 May 2004 when the one-off bonus payment for carers was announced.

·Her husband suffered an acute onset of disability within the meaning of Schedule 2 clause 17(2)(a) of the Admin Act.

11. The application of the law in this instance is clear. The enabling legislation with respect to the one-off bonus payment for carers specifically sets out who can be a “qualified person” for the purposes of a one-off bonus payment. Under s 992N(1) of the Act, there is a specific exclusion from the one-off bonus payment for carers who are in receipt of Carer Allowance on 11 May 2004 because of the operation of clause 16 or 17 of Schedule 2 to the Admin Act.

12. The only reason that the applicant was qualified for a Carer Allowance on 11 May 2004 was because of the operation of clause 17 of Schedule 2 to the Admin Act. Section 992N(1) of the Act therefore excludes her from being a “qualified person” for the purposes of a payment of the one-off bonus payment for carers, payable as a result of the Budget announcement on 11 May 2004.

13.     The applicant claims to have been given incorrect advice by the Department on the day after the Budget, and feels incensed that she has not received the one-off bonus payment.  It is possible that the fine print in the Budget perhaps had not become clear to Departmental officers at that stage, and she may have been given incorrect advice.  That is not an issue for this Tribunal to consider, and is not an issue that affects the application of the law in this case.

14.     In the circumstances the Tribunal affirms the decision under review, and this means that the application is not successful.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         .............J Coulthard...................................
  Associate

Date of Hearing  20 June 2005
Date of Decision  27 June 2005
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Ms J Powell
Solicitor for the Respondent     Centrelink Legal Services Branch