STACEY JOLLY and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 620
•17 September 2012
[2012] AATA 620
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/2263
Re
STACEY JOLLY
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 17 September 2012 Place Brisbane The Tribunal affirms the decision under review.
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Mr R G Kenny, Senior Member
CATCHWORDS
SOCIAL SECURITY – Benefits and entitlements – Carer Payment – Calculation of start date – Claim form lodged more than 13 weeks after initial contact with Centrelink – Start date referable to subsequent claim – Relevance of late application for review of decision of authorised review officer by Social Security Appeals Tribunal – Decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth) s 23
Social Security (Administration) Act 1999 (Cth) ss 11, 13, 16, 42, 152(4), Sch 2
REASONS FOR DECISION
Mr R G Kenny, Senior Member
17 September 2012
BACKGROUND
Stacey Jolly spoke with Centrelink on 22 October 2009 about receiving the Carer Payment in relation to her son. Carer Payment is payable under the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act1999 (“the Administration Act”). The next day, Centrelink sent a letter to Ms Jolly in which it was stated that she would receive Carer Payment if she lodged a claim by 5 November 2009. Ms Jolly completed a form which related to both Carer Allowance and Carer Payment and lodged it with Centrelink on 29 October 2009. This was treated by Centrelink as a claim, not for Carer Payment, but for Carer Allowance which was granted to Ms Jolly on 8 December 2009. Ms Jolly next spoke with Centrelink on 15 August 2011 about Carer Payment and then lodged a claim for that payment on 17 August 2011. This was granted to Ms Jolly with effect from 15 August 2011 and Centrelink determined that it was not payable to her from any earlier date. On 4 October 2011, Ms Jolly sought review of the decision to back-date the carer payment to 15 August 2011 on the basis that she believed it should have been back-dated to the time of her first contact with Centrelink in 2009. An authorised review officer affirmed the Centrelink decision on 1 November 2011. Ms Jolly sought further review of the decision by the Social Security Appeals Tribunal (“the SSAT”) on 27 March 2012. The SSAT affirmed the decision on 16 May 2012.
LEGISLATION AND ISSUES
In order to be paid a social security payment,[1] a written claim must be lodged with Centrelink.[2] The start date for payment is usually the date of claim.[3] An earlier date may be set in certain cases.[4] One such case is where contact was made with Centrelink about a claim for a social security payment, the person was qualified for the payment on the date of contact and a written claim is then lodged within 14 days. That was applicable in this matter and Ms Jolly was paid carer payment from the date she contacted Centrelink on 15 August 2011 where she made her claim two days later.
[1] As defined in s 23 of the Act.
[2] See ss 11 and 16 of the Administration Act.
[3] See s 42 and Pt 2 of Schedule 2 of the Administration Act.
[4] See s 13 of the Administration Act.
EVIDENCE
The form completed by Ms Jolly and lodged with Centrelink on 29 October 2009 related to both Carer Allowance and Carer Payment. It was treated as a claim for the former and not the latter because in one of the questions in the form, Ms Jolly indicated that she was not claiming Carer Payment. In her evidence, Ms Jolly confirmed that she had done this and said that, at that time, she had been unaware of the differences between the two types of payment, had been pre-occupied with the needs of her son, and believed that it was sufficient for her to have provided Centrelink with a medical report about him.
Ms Jolly provided information on the difficult circumstances that have prevailed because of the effect of the injuries to her son, including the need for special schooling arrangements and constant monitoring of him because of his behavioural problems.
SUBMISSIONS
Mr Joe Guthrie, for the respondent, submitted that the Carer Payment could not be paid to Ms Jolly from her first contact on 22 October 2009 because the claim form lodged by her on 23 October 2009 was not a claim for Carer Payment but for Carer Allowance. He accepted that a claim for Carer Payment was then lodged on 17 August 2011 but submitted that this could not result in back-payment to 23 October 2009 because it was lodged more than 13 weeks after the initial contact. Mr Guthrie noted that Ms Jolly had been paid the Carer Adjustment Payment of $7,250 in August 2011 and advised that this form of payment was only payable to persons who were not in receipt of Carer Payment.
Mr Guthrie also noted that the decision of the authorised review officer was made on 1 November 2012 and that Ms Jolly’s application for review by the SSAT was not made until 27 March 2012. He submitted that, because this was more than 13 weeks after the decision of the authorised review officer, the maximum period of back-dating would be to the date of that application for review.[5]
[5] In reliance on s 152(4) of the Administration Act.
Ms Jolly submitted that she had been in difficult financial circumstances because of the expenses associated with caring for the special needs of her son but submitted that her claim was not so much about the financial consideration but, rather, as recognition of the struggles and had been through in giving appropriate care to her family.
CONSIDERATION
A copy of the Claim Form completed by Ms Jolly and lodged on 29 October 2009 was in evidence. At Question 97 therein, Ms Jolly clearly indicated that she was not claiming the Carer Payment at that time. That is not disputed. Neither is it disputed that Ms Jolly was qualified to receive the Carer Payment from 15 August 2011. She may well have been qualified to receive Carer Payment from an earlier time but the medical evidence which confirmed this was not lodged with Centrelink until 6 September 2011 and, significantly, the claim for Carer Payment was not made until 2011. Unfortunately, no discretion is provided for in the relevant legislation to enable an earlier payment date in this case than 15 August 2011. I also accept as correct the submission of Mr Guthrie that, even if Ms Jolly’s start date was determined to be before 15 August 2011, the earliest date from which she could be paid would be the date that she sought review by the SSAT. This was on 27 March 2012 when she was already in receipt of Carer Payment.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
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Associate
Dated 17 September 2012
Date of hearing 14 March 2012 Applicant In person Advocate for the Respondent Joe Guthrie, Departmental Advocate.
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