Siranoush Adian and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 385

[2013] AATA  385

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/5614
Re	Siranoush Adian
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Senior Member A K Britton
Date	13 May 2013
Date of written reasons	5 June 2013
Place	Sydney

The Decision of the Social Security Appeals Tribunal of 14 November 2012 is affirmed.

....................[SGD]....................................................

Senior Member A K Britton

CATCHWORDS

SOCIAL SECURITY—Carer payment and carer allowance—Whether payment or allowance can be backdated—No power under the Social Security (Administration) Act 1999 (Cth) that has not already been exercised—Whether there has been defective administration—Recommendations to the administrator—Decision affirmed

LEGISLATION

Social Security (Administration) Act 1999 (Cth) – ss 13, 41, 42, schedule 2 cl 3(1), cl 17(10)

REASONS FOR DECISION

Senior Member A K Britton
5 June 2013

EDITED EXTRACT OF TRANSCRIPT OF PROCEEDINGS

1. Mrs Siranoush Adian has been receiving carer allowance from 1 September 2009 and carer payment from 27 March 2012. She seeks review of a decision affirmed by the Social Security Appeals Tribunal on 14 November 2012, not to backdate those payments to 2001, the date she claims she commenced providing care to her husband.

2. The sole issue to be determined is whether, as claimed, payment of carer allowance and carer payment can be backdated to 2001, or some later date and, if not, what, if any, powers are conferred on the Tribunal if, as alleged, the commencement of payments were delayed due to “defective administration”.

   Can the payments be backdated?

3. It is useful to summarise the evidence and relevant statutory provisions relevant to this question.

4. Mrs Adian lodged a claim for carer allowance in respect of her husband on 1 September 2009. In answer to question 101 in a pro forma claim form dated 31 August 2009, Mrs Adian stated she did not wish to claim carer payment. On 27 March 2012, Mrs Adian contacted Centrelink to claim carer payment and on 10 April 2012, lodged a claim with Centrelink.

5. Carer allowance and carer payments, like other social security payments, are generally payable from the date on which an eligible claimant lodges a claim: ss 41, 42 and clause 3(1) of schedule 2 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act). There are a number of exceptions to that rule. Apart from that contained in section 13(1) of the Administration Act none apply in this matter.

6. Section 13(1) of the Administration Act provides that if a person contacts Centrelink about a claim and lodges a claim within 14 days, the claim is taken to have been made on the day the initial contact was made. Applying that provision, Centrelink correctly treated Mrs Adian's claim for carer payment as having been made on 27 March 2012, notwithstanding that she did not lodge a claim in the approved form until two weeks later.

7. In certain circumstances payment can be backdated to a maximum of 13 weeks if the claimant made contact with Centrelink between two and 13 weeks prior to lodging a claim (ss 13(2), (3) and (3A) of the Administration Act). None of those exceptions apply in relation to Mrs Adian’s claim for carer payment or carer allowance, because she did not contact Centrelink two to 13 weeks prior to lodging those claims.

8. In addition to the exceptions set out above, cl 17(1) of Schedule 2 of the Administration Act provides for the start date of carer allowance to be backdated to 12 weeks before the claim is lodged providing the claimant was qualified for carer allowance at the time and the care receiver suffers a disability due to an acute onset. This provision does not apply as there is no evidence and nor is it suggested that the disability suffered by Mrs Adian’s husband was due to “acute onset”.

9. I find that the correct start date for payment of carer allowance and carer payment is, as found by the Centrelink Authorised Review Officer and affirmed by the SSAT, 1 September 2009 and 27 March 2012, respectively. Apart from s 13(1) of the Administration Act none of the exceptions to the general rule that the start date for payment of carer allowance and carer payment is from the date the claimant makes a claim apply in this case.

   Was there defective administration?

10. Mrs Adian claims she should be compensated on account of “defective administration”. Under the Compensation for Detriment caused by Defective Administration (the CDDA) Scheme, Government agencies may compensate persons who have experienced detriment as a result of an agency’s defective actions or inaction. (see >

    As I explained at the outset of today's hearing, the Tribunal has no power to order payment under that Scheme. Given that a recommendation had been made by the Social Security Appeals Tribunal that payment be made to Mrs Adian and she gave evidence in these proceedings about conduct by Centrelink officers she contends amounts to defective administration, I have decided that it would be useful if the particulars of the alleged defective action be recorded to assist the relevant decision-maker in the event Mrs Adian decides to make a claim under the Scheme.

11. Mrs Adian as noted lodged a claim on 1 September 2009 for carer allowance. She testified that she completed the form as best she could at home and took it to the Ryde Office of Centrelink where it was checked by a member of staff. Mrs Adian claims the staff member suggested a number of amendments which she incorporated in the form, pointing to, by way of example, the amendments to the answers given to questions 103 and 105 (see section 37 documents, T 6).

12. Question 101 in that form asks whether the claimant wishes to claim carer payment. In the copy of the form contained in the section 37 documents the answer to the question has been highlighted and is somewhat obscured but it would appear that the “no” box has been ticked. Mrs Adian contends that the staff member who checked that from did not advise her that she was eligible for carer payment or to answer “yes” to that question.

13. Mrs Adian, as I understand it, contends that on that occasion (if not earlier) Centrelink officers ought to have drawn to her attention that she was eligible to receive carer payment.

14. As to the general allegation that Centrelink staff in their dealings with Mrs Adian acted in a way that constitutes “defective administration”, the evidence given by Mrs Adian is that prior to 1 September 2009 she did not raise with, or ask a Centrelink officer about whether she was eligible for carer payment. In addition, she contends that prior to that date in her many dealings with Centrelink no one brought it to her attention that she may have been eligible for a carer payment in respect of her husband. She claims, given her husband’s ill health, it ought to have been self-evident that he was unable to care for himself and the availability of carer allowance ought to have been brought to her attention.

15. In the interest of completeness it is necessary to correct a matter referred to in the reasons for decision of the Social Security Appeals Tribunal. Mrs Adian clarified today that it is not correct as stated in paragraph [21] that she had been “… advised for many years that the rate of partner allowance and carer payment were the same and that, if she were transferred to carer payment she would forever lose her right to partner allowance”. On the evidence today it would appear that Mrs Adian alleges she was given this advice some time in 2012. (See Mrs Adian’s letter to Centrelink, 12 April 2012, section 37 documents, T 9.)

16. While the question of whether alleged action or inaction by Centrelink officers amounts to defective administration is not a matter for the Tribunal to decide, it would appear that Mrs Adian has a powerful argument that when she submitted her claim for carer allowance in 2009, the Centrelink officer who checked her claim form should have brought to her attention that she may also have had an entitlement to carer payment.

17. As to the period before that, leaving aside whether Mrs Adian would have been eligible for carer payment, the claim of defective administration seems to be of a more general nature and really goes to the question of the type of, and accessibility of, the information provided to social security recipients, especially those such as Mrs Adian whose first language is not English.

18. I recommend that in the event Mrs Adian makes a claim under the Scheme, consideration be given to backdating the carer payment to the date payments for carer allowance commenced.

    Conclusion

19. In summary, I do not have power to order that payments of carer allowance or carer payment to Mrs Adian be backdated before 1 September 2009 and 27 March 2012, respectively. I recommend that consideration be given to making a payment to Mrs Adian under the Scheme to compensate her for not receiving carer payment from 1 September 2009. I make no recommendation for the period prior to that date.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

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Associate

Dated 5 June 2013

Date(s) of hearing	13 May 2013
Advocate for the Applicant	Marina Khachatrian
Solicitors for the Respondent	Department of Human Services, Program Litigation and Review Branch