Thompson and Secretary, Department of Family and Community Services

[2004] AATA 1369

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1369

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/710

GENERAL ADMINISTRATIVE  DIVISION

Re:JACQUILINE VERONICA THOMPSON

Applicant

And:SECRETARY,

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:             21 December 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

SOCIAL SECURITY ‑ carer allowance ‑ medical condition of child ‑ medical and functional assessment ‑ backdating of payment ‑ 12 month limit ‑ decision affirmed

Social Security Act 1991 ss 38, 952, 953

Social Security (Administration) Act 1999 ss 11, 13, 41, 42, cl 3, 16 of Schedule 2

REASONS FOR DECISION

21 December 2004  Regina Perton, Member

1.      This is an application by Ms Jacquiline Veronica Thompson (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 2 June 2004.  The SSAT affirmed a decision of a delegate of the Secretary to the Department of Family and Community Services (the respondent) dated 16 January 2004, as varied by a decision of an authorised review officer (ARO) dated 7 April 2004, to refuse an application by Ms Thompson for back payment of carer allowance prior to 30 December 2002.  The delegate had determined that Ms Thompson be granted carer allowance and back payment for the previous 12 months, Ms Thompson sought additional back payment on the basis that her daughter’s medical condition, which had resulted in the payment of carer allowance, had existed for longer than twelve months prior to the grant of the allowance.

2.      At the hearing on 14 October 2004, Ms Thompson represented herself.  Mr Wayne Zita, a Centrelink advocate, represented the respondent.  Ms Thompson gave evidence by telephone. 

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T28).  

BACKGROUND

4.      Ms Thompson is the mother of Brooke Peta Thompson (Brooke).  Brooke was born on 17 January 1999 and suffers from chronic asthma and delayed speech. 

5.      Ms Thompson first lodged a claim for carer allowance for Brooke on 11 July 2000.  She sought both a health care card and fortnightly payments.  Ms Thompson was granted a health care card for Brooke, but not fortnightly payments on the basis that Brooke’s disability had not been assessed at that time as meeting the minimum prescribed standard for such a payment.

6.      On 22 March 2002, as part of a regular audit of persons receiving carer allowance, Centrelink sent a letter to Ms Thompson asking her to provide updated information about Brooke.  On 16 April 2002, Ms Thompson lodged a carer allowance claim accompanied by a treating doctor’s report (TDR) dated 12 April 2002.  Based on the doctor’s report, Brooke’s condition was found to be serious enough to meet the medical standards for both a health care card and carer payments. 

7.      Centrelink wrote to Ms Thompson on 19 April 2002 advising that she had not submitted a Functional Assessment Form for Brooke, which Centrelink required in addition to medical evidence about the child’s condition before carer allowance payments could be made.  Centrelink records indicate that Ms Thompson advised them that she did not wish to fill out more forms and was primarily seeking the health care card.  The Functional Assessment form was not submitted to Centrelink at that time.  On 14 May 2002, Centrelink advised Ms Thompson that she had been granted a health care card for Brooke but not carer allowance payments.  She was advised of her entitlement to seek a review of the decision.  She did not seek a review at that time.

8.      On 22 December 2003, Centrelink sent a letter to Ms Thompson advising her of a review of her eligibility for carer allowance.  The Functional Assessment Form and TDR Form accompanied the letter.  Ms Thompson advised Centrelink on 30 December 2003 that she wished to claim carer allowance.  On 8 January 2004 Ms Thompson advised Centrelink that she needed additional time to provide the TDR as Brooke’s treating doctor was on leave until late January.  On 16 January 2004, Ms Thompson lodged her claim and provided both the TDR and the Functional Assessment Form.

9.      On 16 January 2004, Ms Thompson was granted a new health care card for Brooke and carer allowance.  She also received back payments of carer allowance for the previous twelve months on the basis that Brooke was suffering from the disability for at least a year prior to the claim being made. 

10.     Ms Thompson challenged the delegate’s decision to backdate the payments for only 12 months, to 16 January 2003.  She maintained that the payments should be backdated to May 2002, when the medical reports showed that Brooke’s medical condition had been assessed at a level sufficient for the grant of a health care card and carer allowance payments. 

11.     On 7 April 2004, an ARO varied the decision of the delegate.  The ARO affirmed the delegate’s decision that Ms Thompson could only be given payments for a period of twelve months prior to the date of the claim.  However, the ARO found that the pertinent date from which the twelve months should be backdated was 30 December 2003 rather than 16 January 2004, as this was the date Ms Thompson first advised Centrelink of her intention to lodge a claim for carer allowance.

12.     On 30 April 2004, Ms Thompson lodged an application for review with the SSAT.  The SSAT affirmed the delegate’s decision as varied by the ARO on 2 June 2004.  Ms Thompson filed an application for review of the SSAT decision with this Tribunal on 21 June 2004.

13.     The issue before the Tribunal is whether Ms Thompson is entitled to payment of carer allowance for any period prior to 30 December 2002.

EVIDENCE

14.     Ms Thompson told the Tribunal that she had first lodged a claim with Centrelink for carer allowance in December 2000 when Brooke was less than a year old.  At that time, she did not know that Brooke would have delayed speech.  She was advised at that time that Brooke’s condition warranted a health care card but not carer allowance payments.  By the time Ms Thompson filled out the second claim in April 2002, Brooke had already been diagnosed as having delayed speech as well as the ongoing asthma.  Ms Thompson said that she did not seek review of the refusal of the payments because she did not realize that she might qualify, having been told in the past that she was only eligible for a health care card for Brooke.

15.     Ms Thompson said that she became aware that she would most likely have been eligible for carer allowance payments from May 2002 based on Brooke’s doctor’s assessment at that time.  She said she had discovered that her failure to lodge the relevant Functional Assessment Form had been the main reason for her failure to obtain the payments.  Ms Thompson described Brooke’s condition, the slow but steady improvement as a result of the assistance of a teacher’s aide, speech therapy and the patience and dedication of Brooke’s 12 year old sister. 

16.     In the first TDR dated 10 July 2000, Dr E. Lowther, Brooke’s general practitioner made a primary diagnosis of chronic asthma and stated that this condition commenced in March 2000.  In a TDR dated 12 April 2002, Dr Lowther said that the primary diagnosis was chronic asthma and that this condition commenced more than 12 months ago, with a secondary diagnosis of delayed speech.  In the most recent TDR dated 13 January 2004, Dr Lowther’s primary diagnosis was chronic asthma and speech delay and that Brooke had suffered from these conditions for 2.5 years. 

CONSIDERATION OF THE ISSUES

17. The relevant definitions in relation to carer allowance are set out in s 952 of the Social Security Act 1991 (the Act) as follows:

952.  In this Part, unless the contrary intention appears:

…

care receiver has the meaning given by subsections 953(1) and (2) and 954(1).

Child Disability Assessment Tool has the meaning given by subsection 38D(4).

…

disabled child means a person aged under 16 who:

(a)has a physical, intellectual or psychiatric disability; and

(b)is likely to suffer from that disability permanently or for an extended period.

18. Section 953 of the Act sets out how a person qualifies for a carer allowance on the basis of looking after a disabled child. Section 953(1) of the Act provides:

953.(1)  A person is qualified for carer allowance for a disabled child (the care receiver) if:

(a)the care receiver is a dependent child (disregarding subsection 5(3)) of the person; and

(b)the care receiver is an Australian resident; and

(c)either of the following applies:

(i)the disability from which the care receiver is suffering is declared, under subsection 38D(3), to be a recognised disability for the purposes of this section;

(ii)the care receiver has been assessed and rated under the Child Disability Assessment Tool and given a positive score under that assessment tool not less than 1, being a score calculated on the basis of a professional questionnaire score greater than 0; and

(d)because of the disability from which the care receiver is suffering, the care receiver receives care and attention on a daily basis from:

(i)if the person is a member of a couple—the person, the person’s partner or the person together with another person (whether or not the person’s partner); or

(ii) if the person is not a member of a couple—the person or the person together with another person;

in a private home that is the residence of the person and the care receiver; and

(f)        the person is an Australian resident.

19. The nature of the Child Disability Assessment Tool is described in s 38D(4) of the Act as follows:

38D.(1)  The Secretary may, by determination in writing:

(a)devise a test for assessing the functional ability, behaviour and special care needs of a person aged under 16; and

(b)provide a method for rating the person by giving him or her, on the basis of the results of the test, a score in accordance with a scale of the kind described in subsection (2).

38D.(2)  The scale referred to in subsection (1) is a scale that provides for a range of negative and positive scores and under which:

(a)a negative score indicates an absence of a physical, intellectual or psychiatric disability at a significant level; and

(b)a positive score indicates the presence of a physical, intellectual or psychiatric disability at a significant level.

38D.(3) The determination may, in addition, declare that a physical, intellectual or psychiatric disability specified in the determination is a recognised disability for the purposes of section 953.

38D.(4)  The determination, in so far as it provides (in accordance with subsections (1) and (2)) for a test for assessing, and a method for rating, the functional ability, behaviour and special care needs of a person aged under 16 is, in this Act, referred to as the Child Disability Assessment Tool.

38D.(5) The determination is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

20.     Brooke was assessed in January 2004 as having a disability that met the requirements for payment of carer allowance.  The evidence demonstrated that she had been at that level of disability for more than a year.

21.     The administrative aspects of the date from which social security payments, including carer allowance can be paid, are set out in the Social Security (Administration) Act 1999 (the Administration Act). Section 11 of the Administration Act states a person must make an actual claim for a social security payment. Section 13 states that where a person contacts Centrelink foreshadowing a claim, and lodges the claim more than fourteen days but less than 13 weeks after contacting Centrelink, the person is, in certain circumstances, deemed to have made the claim on the day of the initial contact.

22. In this case, Ms Thompson contacted Centrelink on 30 December 2003 and lodged the paperwork on 16 January 2004, more than 14 days but less than 13 weeks later. The delegate found that the date of the claim was the date the paperwork was received. The ARO and the SSAT deemed her application to have been made on 30 December 2003 according to s 13 (3A) of the Administration Act. The Tribunal concurs with the approach taken by the SSAT and the ARO.

23. Sections 41 and 42 of the Administration Act set out the start day for social security payments after a claim is lodged as follows:

41.(1)  Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person’s start day in relation to the social security payment.

41.(2)  Unless another provision of the social security law provides otherwise, a concession card takes effect on the person’s start day in relation to the card.

42. For the purposes of the social security law, a person’s start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2.

24. Clause 3 of Schedule 2 of the Administration Act sets out the start day for a claim for a social security payment as follows:

3.(1)  If:

(a)       a person makes a claim for a social security payment; and

(b)       the person is qualified for the payment on the day on which the claim is made;

the person’s start day in relation to the payment is the day on which the claim is made.

25. However, the rules are eased somewhat in relation to carer allowance for persons with a disabled child by Clause 16 of Schedule 2 of the Administration Act:

16.(1)  If:

(a)a person is qualified for carer allowance for a care receiver who is a disabled child or for 2 care receivers who are disabled children; and

(b)the person makes a claim for carer allowance within 52 weeks after the day on which the person became qualified for the allowance;

the person’s start day in relation to the allowance is the day on which the person became qualified for carer allowance.

16.(2)  If:

(a)a person is qualified for carer allowance for a care receiver who is a disabled child or for 2 care receivers who are disabled children; and

(b)the person makes a claim for carer allowance more than 52 weeks after the day on which the person became qualified for the allowance;

the person’s start day in relation to the allowance is the first day of the period of 52 weeks ending immediately before the day on which the claim was made.

26.     The evidence indicates that Brooke’s medical condition in May 2002 may well have met the criteria for Ms Thompson to be paid carer allowance, had Ms Thompson pursued her entitlement at that time by completing the Functional Assessment Form.  However, she chose not to do so.  Regardless of the reasons behind Ms Thompson’s decision not to seek review of the refusal of carer allowance payments following the May 2002 application, the Tribunal does not have the power to provide relief for her in relation to that claim.  It can only consider the application lodged on 16 January 2004. 

27. Section 16 of the Administration Act allows for backdating of carer allowance where children suffer from a medical condition such as that affecting Brooke. The maximum time period for which payments can be backdated is 52 weeks. The Tribunal is satisfied that Brooke suffered from the medical condition that qualified Ms Thompson for carer allowance for more than a year prior to the application under consideration. Therefore, Ms Thompson is entitled to have payments backdated to 30 December 2002, 52 weeks before the intention to lodge the claim was communicated to Centrelink. There is no discretion in the legislation to backdate the payments for any longer period.

DECISION

28.     The Tribunal affirms the decision under review.

I certify that the twenty-eight (28) preceding paragraphs are a true copy of the reasons for the decision herein of

Regina Perton, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  14 October 2004
Date of decision:  21 December 2004
Advocate for applicant:                Self‑represented
Advocate for respondent:            Mr W. Zita, Centrelink