TANNOCK and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2010] AATA 221
•30 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 221
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5800
GENERAL ADMINISTRATIVE DIVISION ) Re CARMEL TANNOCK Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr P McDermott, RFD, Senior Member Date30 March 2010
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ..................[Sgd].................
Senior Member
CATCHWORDS
SOCIAL SECURITY – Benefits and entitlements – Carer allowance – Whether payment of carer allowance for a disabled adult can be backdated - Decision affirmed.
Administrative Appeals Tribunal Act 1975 (Cth) s 34J
Social Security Act 1991 (Cth) s 952
Social Security (Administration) Act 1999 (Cth) ss 11, 13, 16, Sch 2
REASONS FOR DECISION
30 March 2010 Dr P McDermott, RFD, Senior Member INTRODUCTION
1. Ms Carmel Tannock is entitled to receive carer allowance for the care of her son. She has been granted this benefit from 14 May 2009. I have to determine whether social security law permits Ms Tannock to be granted this benefit from a date earlier than 14 May 2009. For the reasons which appear below, I am of the opinion that Ms Tannock can only be paid carer allowance from 14 May 2009 and not from any earlier date.
BACKGROUND
2. There is no doubt that Ms Tannock is qualified to receive carer allowance in relation to the care she provides for her son. Her carer allowance benefits ceased when her son reached his 16th birthday. This is because different medical qualification criteria are applied for carer payments once a care receiver has turned 16 years of age.[1] I should mention that the term “disabled adult” is defined in s 952 of the Social Security Act 1991 (Cth) as being a person aged 16 years or more who has certain disabilities.
[1] T1/17.
3. Ms Tannock was advised that carer allowance would cease when her son turned 16 years of age. The relevant correspondence was sent to her on 10 January 1997 and 4 April 1997 when she was advised of the cessation of this benefit and was invited to phone her nearest social security office to let them know what her son will be doing when he turns 16. There is no record that Ms Tannock responded to that correspondence. However, I accept that she would have been preoccupied with the care of her son.
4. It was some time after the cessation of the carer allowance benefit that Ms Tannock made enquiries about carer allowance. She contacted Centrelink on 14 May 2009 and was provided with a claim form for carer allowance. She was advised that if the completed claim form was returned before 28 May 2009, the contact date would be used as the day on which the claim was made. On 27 May 2009 Ms Tannock lodged the claim form. On 5 June 2009 she lodged a report from the treating general practitioner.
5. On 18 June 2009 Ms Tannock was granted carer allowance from 14 May 2009. On 20 August 2009 this decision was affirmed by an authorised review officer. On 6 November 2009 the decision was affirmed by the Social Security Appeals Tribunal. Ms Tannock now seeks review by this Tribunal. She makes the submission that she should be paid carer allowance from an earlier date than 14 May 2009 as “the Carer Allowance should be an automatic right”.
CONSIDERATION
6. The parties have consented to this review being determined without a hearing pursuant to s 34J of the Administrative Appeals Tribunal Act 1975 (Cth). The main issue that has to be determined is whether Ms Tannock can be paid carer allowance from a date prior to 14 May 2009. There is no dispute that this is the date that she contacted Centrelink and requested to be paid carer allowance.
7. I have reviewed all of the material that is before me and I find that the date on which Ms Tannock lodged her written claim for carer allowance for her son (once her son became a disabled adult) was 27 May 2009. I also find that the date on which she first contacted Centrelink about that benefit was 14 May 2009.
8. Under s 13(1) of the Social Security (Administration) Act 1999 (Cth), the payment of the benefit is to be made from the day that the applicant contacted Centrelink rather than the day when she had lodged the claim form. I therefore consider that carer allowance should be paid to Ms Tannock from 14 May 2009 as this was the date when she contacted Centrelink.
9. I have to consider whether under social security law it is possible for Ms Tannock to be given carer allowance prior to 14 May 2009. In deciding this issue I have to consider the operation of s 11 of the Social Security (Administration) Act 1999 (Cth) which requires a person who wants to be granted a social security payment (which includes carer allowance) to make a claim in accordance with Division 1 of Part 3 of the Act. Division 1 includes s 16 of that Act which requires a written claim to be lodged by an applicant. Under social security law Ms Tannock is deemed to have lodged a claim form on 14 May 2009. As she had not lodged a claim for carer allowance for a disabled adult before that date, there is no authority for her to be paid that benefit before the date of her claim unless social security law permits that payment to be backdated.
10. I have considered whether it is possible to backdate the payment of carer allowance for a disabled adult. The Social Security (Administration) Act 1999 (Cth) provides for the start date in relation to a benefit to be worked out in accordance with Schedule 2 of that Act. Clause 17 of that Schedule relates to the payment of carer allowance for a disabled adult. That clause enables the start date of carer allowance for a disabled adult to be varied in cases of acute onset. However, there is no evidence before me that there is any acute onset of a disability. Indeed, Dr Lahanas, the treating general practitioner, in his report of 1 June 2009 has answered “no” to the question of whether the current care needs of the applicant’s son are attributable to an acute onset of the disability and/or medical conditions. As he is the treating general practitioner, I have given his opinion some weight. In my view it is not possible under social security law to backdate the payment of carer allowance.
DECISION
11. I affirm the decision under review.
I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member
Signed: ........................[Sgd]................................................
Kate Slack, Research AssociateDate of Hearing on the Papers 15 March 2010
Date of Decision 30 March 2010
0
0
0