SUSAN MIDDLETON and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 569
•22 August 2012
[2012] AATA 569
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0023
Re
SUSAN MIDDLETON
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal K Hogan, Member
Date 22 August 2012 Place Perth The Tribunal affirms the decision under review.
..(Sgd) Ms K Hogan...............
Ms K Hogan, Member
Catchwords
Social Security - carer allowance
Legislation
SocialSecurity Act 1991
Social Security (Administration) Act 1999
Acts Interpretation Act 1901
Cases
Lambert v Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 870.
Johnson and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1535 (11 July 2007).
Thiagarajan and Secretary, Department of Employment and Workplace Relations [2007] AATA 2065 (18 December 2007).
Fancourt v Mercantile Credits Limited [1983] HCA 25; (1983) 154 CLR 87.
Repatriation Commission v Gordon [1990] FCA 41; (1990) 100 ALR 255.
Parker and Secretary, Department of Families, Community Services [2004] AATA 1278.
Beer v Davies [1958] 2 QB 187.
Hewitt v Leicester Corporation (1969) 1 WLR 855 (1969;) 2 All ER 802.Saga Limited v Avalon Promotions [1972] 2 QB 325.
REASONS FOR DECISION
22 August 2012
HISTORY
The applicant has a son, Isaac, born 30 March 1989, who has cerebral palsy.
The applicant was paid carer allowance in respect of her son until he turned 16 years of age on 30 March 2005.
On 5 April 2005 the applicant contacted Centrelink in regard to claiming carer allowance (caring for a person 16 years or over).
On 19 April 2005 the applicant applied for carer allowance in respect of the care she provides for Isaac.
On 27 May 2005 a Centrelink officer rejected her claim on the grounds that "the condition of Isaac is not at the level which would qualify you for it".
On 19 April 2011 the applicant again claimed carer allowance for Isaac and, on 24 June 2011, a Centrelink officer decided that she was qualified for this allowance from 19 April 2011.
The applicant requested a review of this decision, asking that the payment of a carer allowance be backdated to 19 April 2005.
On 16 September 2011 a Centrelink authorised review officer (ARO) reviewed and affirmed the original decision.
On 12 October 2011 the applicant lodged an application for review of the decision with the Social Security Appeals Tribunal (the SSAT) which affirmed the decision of the ARO on 21 November 2011.
On 24 December 2011 the applicant lodged an appeal for review to this Tribunal.
ISSUE
The issue to be considered by the Tribunal is whether the applicant can be paid carer allowance from a date earlier than 19 April 2011.
EVIDENCE
The Tribunal was provided with a number of documents including:
(a) the section 37 documents;
(b) written submissions from the applicant; and
(c) written submissions from the respondent.
The Tribunal heard oral submissions on behalf of the parties.
Subsequent to the hearing of this matter, the applicant provided further submissions.
CONSIDERATION
The legislation relevant to this appeal is found within social security law, in particular the Social Security Act 1991 (the Act), the Social Security Administration Act 1999 (the Administration Act).
Provisions relating to whether a person is qualified for carer allowance for an adult and whether carer allowance is payable to the person are contained in Part 2.19 of the Act.
Provisions relating to review of decisions is contained in Part 3 of the Administration Act and provisions related to the delivery of notices is contained in Part 7 of the Administration Act.
ISSUE: WHETHER THE APPLICANT CAN BE PAID CARER ALLOWANCE FROM A DATE EARLIER THAN 19 APRIL 2011
Relevant Law
Section 954 of the Act sets out the qualification criteria for carer allowance for a disabled adult. In essence the criteria are that the care receiver is a family member of the carer and that care is provided in the home of both people, and the care receiver's rating under the Adult Disability Assessment Tool is at least 30, based on a professional questionnaire score of at least 12.
Section 109 of the Administration Act sets out the date of effect of favourable decisions resulting from a review. Relevantly, it states, in part:
(2) If:
(a)a decision (the original decision) is made in relation to a person's social security payment; and
(b)a notice is given to the person informing the person of the original decision; and
(c)more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d)the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the application for review was made.
Section 237 of the Administration Act provides the following regarding the delivery of notices of decisions:
1. If notice of a decision under the social security law is:
(a)delivered to a person personally; or
(b)left at the address of the place of residence or business of the person last known to the Secretary; or
(c)sent by prepaid post to the postal address of the person last known to the Secretary
notice of the decision is taken, for the purposes of the social security law, to have been given to the person.
(2) Notice of a decision under the social security law may be given to a person by properly addressing, prepaying and posting the document as a letter.
(3) If notice of a decision is given in accordance with subsection (2), notice of the decision is taken to have been given to the person at the time at which the notice would be delivered in the ordinary course of the post unless the contrary is proved.
Evidence, findings of fact and the application of law
The applicant received carer allowance for Isaac, as a child, because he has severe cerebral palsy. Before Isaac turned 16 years of age Centrelink advised her that she would need to reapply for carer allowance for Isaac, as an adult, when he turned 16.
She lodged her claim, including a medical report and the details of the care she provided for Isaac and was told that she would get a letter advising her if her claim was successful. Her evidence was that she did not get a letter from Centrelink, and therefore assumed that her claim was unsuccessful because the rules for adults with disabilities must have been different to those for children with disabilities. She did not seek a review at this time.
In 2011 it was suggested to her by someone from Centrelink that she might be qualified for carer allowance for Isaac, given the nature and severity of his disability.
In 2011, she lodged a claim for carer allowance, including a medical report and the details of the care she provided for Isaac and was notified that she did not qualify for carer allowance as, although the medical report attracted a sufficient rating for the professional questionnaire component, her responses to the questionnaire did not attract sufficient points.
Following completion of another questionnaire her claim was accepted. She was unsure whether she had ticked different boxes on the questionnaire the second time around, but she had added several comments and thinks that these may have resulted in her being granted the allowance.
The applicant's evidence was that had she received a notice in 2005, similar to the one she received in 2011, explaining that her questionnaire 'score' was too low, she would have lodged a new form and would probably have been qualified for the allowance, given that Isaac's care needs have essentially remained unchanged from when he was a 15 year old child, until now.
The applicant's Centrelink record shows that she had been sent a notice on 27 May 2005 advising her that her claim for carer allowance had been rejected [T4:23-24]. The notice had been sent to her postal address, PO Box 294 Hillarys 6924. The applicant confirmed that this address was her postal address at the time. The applicant reported that, from time to time, mail was incorrectly delivered to her box and she considers it possible that the letter may have ended up in someone else's box in error.
The respondent submitted that the notice of 27 May 2005 was sent by pre-paid post to the applicant’s correct postal address:[ T16: page 86] and that there is no evidence of non-delivery, therefore it is contended that it was received by her as per section 237 of the Administration Act.
There are provisions in the social security law which enable the “back dating” of a claim for a benefit under section 107(4) of the Administration Act where an applicant has not received notice of the decision to reject a claim. The applicant and her husband have contended that this is such a case.
Whilst the respondent did not question the credibility of the applicant, the respondent contended that a mere assertion that the letter was not received is insufficient evidence to displace the presumption in section 237(3) that notice of the decision was given (see Re The Repatriation Commission and JS Gordon, RA Arundel and FW Bell sitting as the Veterans’ Review Board and R Bongioletti (1990)100 ALR 255 and Lambert v Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 870.
In Johnson and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1535 (11 July 2007) it was stated at paragraph 30:
“Having regard to the new statement of 4 April 2007 I am now satisfied that the letter of 19 October 2005 was indeed posted to Mr Johnson. The Administration Act provides that if a notice of a decision is given by pre-paid post then the notice is taken to be given to the person at the time at which the notice would be delivered in the ordinary course of a post unless the contrary is proved s 237(3). The officer has stated that in the ordinary course of the post the letter would have been delivered from Sydney to Mr Johnson’s address about three day after it was lodged with Australia Post. On this basis the letter would have been delivered to Mr Johnson some three days after it was lodged with Australia Post on 21 October 2005. It would have on that basis been delivered by 25 October 2005. There is no contrary evidence before me that displaces the effect of section 237(3) of the Administration Act”.
In Thiagarajan and Secretary, Department of Employment and Workplace Relations [2007] AATA 2065 (18 December 2007) it was stated at paragraph 30:
“The difficulty with Mrs Thiagarajan’s contention is that merely sending a pre-paid letter recording a decision may constitute giving notice of the decision for the purpose of ‘the social security law’ if the notice is sent by pre-paid post to the person’s last address known to the Secretary, notice is taken to have been given to the person at the time when the letter would be delivered in the ordinary course of post: ss 237(1) and (2) of the SSAA. This is so unless there is evidence to establish that it was not delivered – either in the ordinary course of post or at all: section 237(3) of the SSAA. Proof of non-delivery is not provided, or at least not necessarily provided, merely by evidence that the addressee did not actually receive the letter: Fancourt v Mercantile Credits Limited [1983] HCA 25; (1983) 154 CLR 87 at 96 - 97 and Repatriation Commission v Gordon [1990] FCA 41; (1990) 100 ALR 255.
In Parker v Secretary, Department of Community Services [2004] AATA 1278 the Tribunal noted in relation to section 237, that:
“If the deeming provision is satisfied, the onus then moves to the applicant to prove that the contrary applies. This can be achieved by providing substantial evidence that outweighs the statutory presumption, for example, by illness, or by demonstrating mail has been lost or stolen”.
Evidence was provided from the caretaker of her building that mail had, on a number of occasions, been stolen from the unit block where the applicant lived. The parents of the applicant, who suffered from epilepsy, attended to all of her affairs, and they demonstrated to the Tribunal diligence in attending to her affairs promptly. In the circumstances of that case, the Tribunal was satisfied on the balance of probabilities that the applicant had not received the letter and the contrary was proven for the purposes of section 237.
Subsequent to the hearing of this matter, the applicant provided, by letter dated 10 July 2012, a supplementary submission regarding her claim that she did not receive the letter. The applicant advised that she was not able to obtain written confirmation from the Hillarys Post Office regarding the placing of letters into the wrong post office box. The further submission confirmed that the applicant has kept records dating back to at least 2005 which include her notes of responding promptly and diligently to Centrelink.
It is patent that the applicant has kept a record of her communications with Centrelink dating back to 2005 however the applicant was not able to provide independent confirmation of human error in the delivery of mail.
The Tribunal accepts the applicant’s evidence that she did not receive the letter of 27 May 2005 as being truthful.
The Tribunal is satisfied that the letter of 27 May 2005 was indeed posted to the applicant. The Administration Act provides that if a notice of decision is given by pre-paid post then the notice is taken to be given to a person at the time at which the notice would be delivered in the ordinary course of the post unless the contrary is proved (section 237(3)).
Section 107(4) of the Administration Act can have no operation in the absence of contrary evidence that displaces the effect of section 237(3) of the Administration Act. Having regard to the operation of section 237 of the Administration Act, the decision to grant the applicant the carers benefit cannot take effect from the date of the original decision.
In the cases in which service by post was established not to have occurred, there was proof of non-delivery, not non-receipt. Non-delivery is significant because section 29(1) of the Acts Interpretation Act 1901 refers to proof of the contrary of delivery.
Unfortunately for the applicant, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post. In the present case there is no evidence of non-delivery and the Tribunal is not able to find in favour of the applicant on this point. See Beer v Davies [1958] 2 QB 187; Hewitt v Leicester Corporation [1969] 1 WLR 855; [1969] 2 All ER 802; Saga Limited v Avalon Promotions [1972] 2 QB 325.
The Tribunal accepts that the applicant's application for carer allowance dated 19 April 2011 can be considered to be a request for review of the 2005 rejection decision, and it is not disputed that this was her first request for such a review. However, as the applicant did not request a review of the 2005 rejection decision until 19 April 2011, subsection 109(2) of the Administration Act applies and the date of the effect of the favourable outcome of the request for review was 19 April 2011. As this is also the date from which the applicant has been granted carer allowance for Isaac, no additional benefit can be gained from the successful outcome of the review.
Unfortunately, whilst the applicant may well have been qualified for carer allowance for Isaac in 2005, given the nature and severity of his disability, the legislation does not contain any discretion to permit the Tribunal to make an alternative decision. Whilst the applicant was not able to provide independent confirmation of human error in the delivery of mail it is clear from the comprehensive records kept by the applicant dating back to 2005 and the notes and/or evidence regarding her diligent response to the correspondence from Centrelink, that if the applicant had received the letter dated 27 May 2005 that she would have responded to that letter within time to have qualified for the carers allowance in 2005.
Ex Gratia Payment
Whilst it is beyond my jurisdiction to order the making of an ex gratia payment, it is my view that such a payment is warranted in the circumstances of this case. The provision of an ex gratia payment is sometimes considered in circumstances where the application of legislation produced an unfair result or there was a moral obligation on the Commonwealth to make a payment. In my view, I consider the result produced by the above legislation, in its application to the applicant, to be unfair.
I therefore suggest that the applicant apply to the Minister of Finance for an ex gratia payment equivalent to the carers allowance that would have been payable to the applicant between 5 April 2005 and 19 April 2011.
DECISION
The Tribunal affirms the Decision under review.
I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of .
..(sgd) T Freeman.......................
Associate
Dated 22 August 2012
Date of hearing 27 June 2012 Applicant In person Advocate for the Respondent Mr Maishman
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