Selliah and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 380

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 380

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/5324

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Nivadita Selliah

Applicant

And Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal Senior Member A K Britton

Date5 April 2011

PlaceSydney

Decision The decision under review is dismissed under s 42B of the Administrative Appeals Tribunal Act 1975 (Cth).

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Senior Member A K Britton

REASONS FOR DECISION REVISED FROM THE TRANSCRIPT

5 April 2011 Senior Member A K Britton           

1.Ms Nivadita Selliah seeks review of a decision made by Centrelink and affirmed by the Social Security Appeals Tribunal, not to pay her a bereavement payment after the death of her mother. The Respondent Secretary has moved for the application to be dismissed under s 42B of the Administrative Appeals Tribunal Act 1975 (Cth).

2.Section 235 of the Social Security Act 1991 (Cth) (the Act) provides that where a person is receiving carer payment and the person they are caring for dies, they remain qualified for the carer payment throughout the “bereavement period”. ”. The “bereavement period” is the 14 day period after the person’s death: s 21(2). This payment is referred to as a “bereavement payment

3.While Ms Selliah provided loving care to her mother for many years and had previously been in receipt of a carer payment in relation to the care of her mother, as she was not receiving “carer payment” at the time of her mother’s death, she was not entitled to receive bereavement payment. 

4.I am always reluctant to summarily dismiss an application for review of a decision, because one of the roles of the tribunal is to assist parties to understand the basis upon which a decision is made.  I am also reluctant to characterise an application such as that made by Ms Selliah as “frivolous” because in some jurisdictions, the term is used to mean an abuse of process. I do not take that view of Ms Selliah’s application.

5.However, I agree with Ms Prasad for the respondent, that there would be no useful purpose in proceeding to review the decision not to grant Ms Selliah a bereavement payment because she plainly has no entitlement to the payment under the Act and the Tribunal does not have a discretionary power to permit that payment to be made. 

6.The real issue, as I understand from Ms Selliah’s submission today, is her belief that she was she was incorrectly advised by Centrelink that she was ineligible for carer payment and the consequences of not receiving that payment were not properly explained to her.

7.One of the reasons I asked Ms Selliah some questions this morning was because I was concerned that the Authorised Review Officer and the Social Security Appeals Tribunal might have misconstrued the decision the subject of Ms Selliah’s application for review.  Ms Selliah confirmed, however, that the description at page 162 of the T documents under the heading “Special Case” broadly summarises the issues she raised at that time. Even on a very liberal and non-technical view of that summary, that “application” could not be construed as a request for review of the purported decision to refuse to grant Ms Selliah carer payment.

8.If the approach taken is to take all of Ms Selliah’s evidence at its highest, that is, accepting everything she said as true, I must conclude that the decision made by the authorised review officer and later by the SSAT, was the correct decision.  For that reason, I will dismiss the application today because it is frivolous in the sense that it lacks substance and could not succeed if the matter goes to a full hearing.

9.If the issue Ms Selliah seeks to agitate is — “Whether Centrelink officers provided her with inaccurate information about her eligibility for carer payment”, then the Administrative Appeals Tribunal is not the forum to do so. If Ms Selliah’s central concern is Centrelink’s alleged maladministration or poor advice – the Tribunal is without power to grant relief. As Ms Prasad said this morning, there other options available to Ms Selliah that she might want to explore.

10.If what Ms Selliah is seeking is a review of the purported decision not to grant her carer payment at some earlier time, then it is open to her to make an application for review of that purported decision to Centrelink.

11.Ms Selliah has two options and I am going to ask Ms Prasad to go through them with her after this hearing.  One is that Ms Selliah might want to take some action on account of the alleged poor advice given by Centrelink officers.  Whether the advice given was as claimed, poor or wrong is not something I can comment on.

12.However, if what Ms Selliah is saying is that “I effectively applied for a carer benefit but it was refused before I even got to the stage of making a claim”, that purported decision may be reviewable. I am going to ask Ms Prasad to provide Ms Selliah with information about how she might pursue that issue.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

Signed:         ...................................................................
  Associate to Senior Member Britton

Date/s of Hearing  5 April 2011
Date of Decision  5 April 2011
Solicitor for the Respondent     Ms R Prasad, Centrelink Advocacy