Tynan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 287

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 287

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1107

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Thomas Tynan

Applicant

And Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal Senior Member A K Britton

Date9 April 2010

PlaceSydney

Decision Pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975, the application for an extension of time to lodge an application for a review of the decision of the Social Security Appeals Tribunal dated 2 February 2010 is refused.

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

Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – application for an extension of time to lodge an application for review of a decision – merits of the substantive application

Social Security Act 1991 — ss 198, 154

REASONS FOR DECISION

9 April 2010 Senior Member A K Britton           

1.      Mr Thomas Tynan has applied for a review of the decision made by Centrelink and affirmed by the Social Security Appeals Tribunal (SSAT) to refuse his claims for carer payment and allowance in respect of his wife, Mrs Christine Tynan.  The SSAT’s decision was handed down on 2 February 2010.  On 18 March Mr Tynan lodged an application for review of that decision with the AAT.  That application is out of time by a short period — about two weeks.  Nonetheless, Mr Tynan’s application cannot proceed unless leave is granted under 29(7) of the Administrative Appeals Tribunal Act 1975  to extend the time in which his application can be made.

2. An eligibility requirement for both the carer allowance and carer payment is that the care be provided in a private home, specifically, the residence of either the carer or the care recipient: ss 198 and 954 of the Social Security Act 1991 (the Act). There is no dispute that Mr Tynan provides his wife with high level of care, and devotes much time to that task. Sadly, because of the extent of Mrs Tynan’s disabilities, she is currently resident in a nursing home.  A critical eligibility requirement for both the allowance and payment is therefore not met.

3.      Because of her high needs Mrs Tynan can only stay overnight at the family home only one night a week. She is cared for during those visits by Mr Tynan. While there is no argument that for the remainder of the time Mr Tynan also devoting a large amounts of time to his wife’s care — it is not provided in a private home — and accordingly he does not qualify for either carer payment or allowance. For that reason the substantive application cannot succeed. 

4. As I indicated to Mr Tynan today, the Act imposes some arbitrary rules — the resident requirement for carer payment and allowance, being but one example. There is no discretion available to me or the Secretary of the Department to waive that rule in this matter and, sadly, for that reason, I am unable to do so, despite the obvious merit in Mr Tynan’s claim that he plays a pivotal role in the care of his wife. Given that the substantive application cannot succeed I have decided not to exercise my power to extend time under s 29(7) of the Administrative Appeals Tribunal Act 1975.  

I certify that the 4 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

Signed:         .................................[SGD].............................................
  Associate to Senior Member Britton

Date of Hearing:                   9 April 2010
Date of Decision:  9 April 2010
Date of Written Reasons:  22 April 2010
The Applicant appeared in person

Representative for the Respondent:         Ms A Garcia,

Centrelink Advocacy Branch