Urbano and Secretary, Department of Social Services (Social services second review)

[2022] AATA 3798

Urbano and Secretary, Department of Social Services (Social services second review) [2022] AATA 3798 (7 November 2022)

Division:GENERAL DIVISION

File Number(s):      2022/0483

Re:Giovanni Urbano

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Senior Member Dr Linda Kirk

Date:7 November 2022

Place:Sydney

The Reviewable Decision, being the decision of a delegate of the Respondent made on 14 October 2021 to refuse the Applicant’s claim for carer payment, is affirmed.

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

Senior Member Dr Linda Kirk

Catchwords

SOCIAL SECURITY - Carer Payment - qualification for carer payment - care receiver's assets test - whether applicant engages exception to assets test - whether applicant can rely on faulty information received from agency - decision affirmed.

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Drake and Minister for Immigration and Ethnic affairs (No 2) (1979) 2 ALD 634

YFFS and Secretary, Department of Health [2022] AATA 728

Secondary Materials

Guide to Social Security Law, Department of Social Services

REASONS FOR DECISION

Senior Member Dr Linda Kirk

7 November 2022

introduction

1. On 17 May 2021, Giovanni Urbano (‘the Applicant’) submitted a claim for carer payment in respect of care he provided to his mother, Mrs Caterina Urbano (‘the care receiver’).[1]

   [1] T8, 45-77.

2. On 6 June 2021 Services Australia, on behalf of the Secretary, Department of Social Services (‘the Respondent’), sent a notice to the Applicant informing him that his claim for carer payment had been rejected on the basis that the care receiver’s assets were above the allowable limit.[2]

   [2] ST8, 277.

3. On 14 October 2021, an Authorised Review Officer (‘ARO’) affirmed the decision to reject the Applicant’s claim for carer payment (‘the Reviewable Decision’).[3]

   [3] T14, 91-93.

4. On 21 October 2021, the care receiver died.[4]

   [4] ST9, 279.

5. On 22 October 2021, the Applicant lodged with the Administrative Appeals Tribunal (‘the Tribunal’) a request for review of the Reviewable Decision by the Social Services and Child Support Division (‘AAT1’).[5]

   [5] T15, 96-175.

6. On 12 January 2022, AAT1 affirmed the Reviewable Decision.

7. On 18 January 2022, the Applicant applied to the Tribunal for a review of the Reviewable Decision by the General Division (‘Review Application’).[6]

   [6] T1, 1-2.

8. The following material is before the Tribunal:

   ·T documents

   ·Supplementary T documents

   legal framework

   Legislation

9. The relevant legislation is contained in the:

   (a)Social Security Act 1991 (Cth) (‘the Act’); and

   (b)Social Security (Administration) Act 1999 (Cth) (‘the Administration Act’).

10. Pursuant to section 198 of the Act, eligibility for carer’s payment requires, in general terms, the recipient of the payment to be personally providing constant care to a disabled adult in a private residence that is the home of the care recipient.[7]

    [7]s 198.

    Assets test

11. As provided by paragraph 198(5)(d), section 198D of the Act sets out the assets test for the purposes of carer payment. Section 198(5) relevantly states:

    Income and assets tests etc.

    (5)    The care receiver or care receivers must:

    (b)subject to subsection (6), be Australian residents; and Note:       For Australian resident see section 7.

    (c)subject to subsection (7), pass the income test under section 198A; and

    (d)subject to subsection (7), either:

    (i)pass the assets test under section 198D; or

    (ii)be the subject of a decision in force under subsection 198N(2), (3) or (4) that subparagraph (i) does not disqualify the person providing the constant care from carer payment.

12. If a care receiver’s assets exceed the relevant threshold (subject to indexation), no person can receive carer payment for providing care to the care recipient.

13. As at 17 May 2021, the relevant threshold for a care receiver’s assets was $716,750.[8]

    [8] ST1, 221.

    Exception to care receiver’s asset test

14. Section 198N of the Act provides that, in certain circumstances, the Respondent may disregard the care receiver assets test. This is based on the assets and liquid assets of the care receiver.

15. Subsections 198N(2) to (4) provides circumstances in which the discretion to disregard the care receiver assets test may be enlivened. The exceptions are as follows:

    Failing assets test but passing special income test

    (2)The Secretary may decide that subparagraph 197B(4)(d)(i), 197C(4)(d)(i), 197D(4)(d)(i), 197E(5)(d)(i) or 198(5)(d)(i) does not disqualify the person from carer payment if:

    (a)the value of the assets of the care receiver or the sum of the values of the assets of the care receivers is more than $410,000 but not more than $608,500; and

    (b)the value of the liquid assets of the care receiver, or the sum of the values of the liquid assets of the care receivers, is less than the liquid assets limit; and

    (c)the amount of the accepted estimated taxable income of the care receiver, or the sum of the amounts of the accepted estimated taxable incomes of the care receivers, for the current financial year is less than the threshold amount worked out under subsection (6).

    …

    Failing assets and special income tests

    (3)The Secretary may decide that subparagraph 197B(4)(d)(i), 197C(4)(d)(i), 197D(4)(d)(i), 197E(5)(d)(i) or 198(5)(d)(i) does not disqualify the person from carer payment if the value of the assets of the care receiver, or the sum of the values of the assets of the care receivers, is more than $410,000 and not more than $608,500 and:

    (a)the value of the liquid assets of the care receiver, or the sum of the values of the liquid assets of the care receivers, is equal to or greater than the liquid assets limit; or

    (b)the amount of the accepted estimated taxable income of the care receiver, or the sum of the amounts of the accepted estimated taxable incomes of the care receivers, for the current financial year is equal to or more than the threshold amount worked out under subsection (6).

    …

    Failing assets test by large margin but passing special income test

    (4)The Secretary may decide that subparagraph 197B(4)(d)(i), 197C(4)(d)(i), 197D(4)(d)(i), 197E(5)(d)(i) or 198(5)(d)(i) does not disqualify the person from carer payment if:

    (a)the value of the assets of the care receiver, or the sum of the values of the assets of the care receivers, is more than $608,500; and

    (b)the value of the liquid assets of the care receiver, or the sum of the values of the liquid assets of the care receivers, is less than the liquid assets limit; and

    (c)the amount of the accepted estimated taxable income of the care receiver, or the sum of the amounts of the accepted estimated taxable incomes of the care receivers, for the current financial year is less than the threshold amount worked out under subsection (6).

    Liquid Assets Limit

16. The liquid assets limit is set out at section 198N(5)(b) of the Act, and provides that:

    (b)the liquid assets limit is $10,000 if the care receiver or any of the care receivers is a member of a couple, or $6,000 if not; …

17. Section 19B of the Act defines “liquid assets” as follows:

    In section 198N (exemption from care receiver assets test):

    "liquid assets", in relation to a person, means

    (a)the person's cash; and

    (b)the person's shares and debentures in a public company within the meaning of the Corporations Act 2001; and

    (c)any amount deposited with, or lent to, a bank or other financial institution by the person (whether or not the amount can be withdrawn or repaid immediately); and

    (d)any amount due, and able to be paid, to the person by, or on behalf of, a former employer of the person; and

    (e)any other readily realisable assets of the person; …

    Assets Limit

18. The asset range in subsections 198N(2) to(4) is subject to indexation in accordance with sections 1190 and1191. As at 17 May 2021, this range was $716,751 to $1,064,749.[9] 

    Alternative to Income/Asset Test for Higher ADAT Score Adults

    [9] T18, 204.

19. Subsection 198(7) of the Act provides an alternative to the income/assets test when the care receiver is a higher ADAT score adult:

    Alternative to income/assets test for higher ADAT score adults

    (7)    Paragraphs (5)(c) and (d) do not apply if the care receiver is the higher ADAT score adult mentioned in paragraph (2)(a) and the adult:

    (a)is receiving a social security pension or benefit, a service pension, income support supplement or a veteran payment; or

    (b)would be receiving a social security or service pension or income support supplement if he or she had been an Australian resident for a long enough period.

    Policy

20. Relevant policy is contained in the Social Security Guide (‘the Guide’). In order to ensure consistency in decision making, the relevant policy should be followed unless there are cogent reasons for the Tribunal to depart from its application.[10]

    Higher Adult Disability Assessment Tool (ADAT) score

    [10]Drake and Minister for Immigration and Ethnic affairs (No 2) (1979) 2 ALD 634 at 645.

21. The Guide at 1.1.H.63 relevantly states:

    1.1.H.63 Higher ADAT score adult (CP (adult)) Definition

    For the purpose of CP (adult) a higher ADAT (1.1.A.78) score adult is a person who:

    ·has a physical, intellectual or psychiatric disability, AND

    ·is being provided with constant care (1.1.C.310), AND

    ·has been assessed, rated and given a score of at least 25 under the ADAT with the THP component of the score being a minimum of 10, OR

    ·receives care from more than one carer and has been assessed, rated and given a total score of at least 80 with the THP component being at least 32, AND

    ·is likely to suffer from that disability permanently or for an extended period of at least 6 months.

    ISSUES FOR DETERMINATION

22. The issues which arise in this matter are:

    1) Did the care receiver meet the asset test under section 198D?

    2) Do the exceptions to the care receiver’s asset test under section 198N apply?

    3) Does the alternative to the income/asset test for Higher ADAT Score Adults in subsection 198(7) apply?

    4)        What is the effect of representations made by Centrelink to the Applicant?

    Evidence before the Tribunal

    Care receiver’s condition

23. The care receiver had a physical disability and was being provided constant care from 15 May 2021.[11]  The care receiver was assessed and given a score of 107.50, with 42.00 as the THP component.[12] The Respondent accepts that the care receiver’s condition was permanent,[13] and she is categorised as a higher ADAT score adult.

    [11] T8, 73.

    [12] ST4, 2.

    [13] ST6, 265.

    Care receiver’s assets

24. As at 17 May 2021, the care receiver held the following assets:

Asset	Value
Property at 39 Hillard Street, Wiley Park NSW (‘Wiley Park property’)	$1,240,000 (as at 1 July 2019)[14]
St George Bank term deposit	$86,371[15]
St George Bank savings account	$10,768[16]
Total	$1,337,139

[14] T4, 35.

[15] ST2, 239.

[16] ST2, 239.

1. In the Carer Payment – Income and assets details form, dated 1 June 2021, the care receiver stated that the current total net market value of her family assets was $1.286 million.[17]

   [17] ST7, 274.

   Representations made by Centrelink to the Applicant

2. The Applicant told  AAT1 that he gave up his job as a solicitor and claimed carer payment for his mother following a discussion with Centrelink on 5 February 2021. He said that there was no mention during this discussion of the potential impact of his mother’s assets nor any suggestion that he might be ineligible for carer payment. The first time the matter of his mother’s assets was raised was when Centrelink requested documents about them after his claim had already been made.

   CONSIDERATION AND REASONS

3. In order for a person to qualify for carer payment in relation to a disabled adult, the person must satisfy the requirements set out in section 198 of the Act. This includes the requirement in paragraph 198(5)(d) that the care receiver meet the assets test under section 198D of the Act.

   1) Did the care receiver meet the asset test under section 198D?

4. The evidence before the Tribunal is that as at 17 May 2021, the care receiver owned the assets listed in [24] above. In a Module R form provided to Centrelink in July 2020, the value of the Wiley Park Property was estimated as $1.24 million.[18] This is the same figure as the official land valuation for the property as at 1 July 2019. As this valuation did not include any structures on the land, AAT1 inferred the value of the Wiley Park Property as at 17 May 2021 was considerably higher than $1.24 million. In addition to the Wiley Park Property, the care receiver also held money in two accounts with St George Bank totalling an amount of $97,139.

   [18] T7, 40.

5. Based on the evidence before it, the Tribunal finds that the care receiver’s total assets amounted to $1,337,139. This far exceeds the relevant threshold for a care receiver’s assets being $716,750 as at 17 May 2021.

6. Given her level of assets as at 17 May 2021, the Tribunal finds that the care receiver did not satisfy the assets test under section 198D of the Act.

   2)        Do the exceptions to the care receiver’s asset test under section 198N apply?

7. Subsections 198N(2) to (4) provides circumstances in which the discretion to disregard the care receiver assets test may be enlivened. This is assessed with reference to the assets and liquid assets of the care receiver.

8. The evidence before the Tribunal is that the care receiver’s liquid assets amounted to a total sum of $97,137 at the time of the Applicant’s claim, which was comprised of $10,768 in the St George Bank savings account and $86,371 in a St George Bank term deposit. This far exceeds the liquid assets limit of $6,000, for an individual who is not a member of a couple. ,.

9. The asset range in subsections 198N(2) to (4) is subject to indexation in accordance with sections 1190 and 1191. As at 17 May 2021, this range was $716,751 to $1,064,749.[19] As the value of the care receiver’s assets totalled $1,337,139 they far exceeded the upper assets limit.

   [19] T18, 204

10. As the care receiver exceeded the liquid assets limit and the upper asset limit, the Tribunal finds that the exceptions to the care receiver’s asset test do not apply, and the discretion to disregard the care receiver assets test is not enlivened.

    3) Does the alternative to the income/asset test for Higher ADAT Score Adults in subsection 198(7) apply?

11. As the care receiver was a higher ADAT score adult, the Tribunal has considered whether the alternative to the income/assets test in subsection 198(7) applies.

12. The Tribunal finds that the alternative in subsection 198(7) does not apply, because as at the time of application, the care receiver was not in receipt of a social security pension or benefit, a service pension, income support supplement or a veteran payment.

    4)        What is the effect of the representations made by Centrelink to the Applicant?

13. The Applicant claims that assets test was not explained to him when he first contacted Centrelink. He resigned from his employment on the basis of representations made to him by Centrelink that he was entitled to carer payment.[20]

    [20] T1, 2.

14. The Respondent relies on the following passage from the Tribunal’s decision in YFFS and Secretary, Department of Health (‘YFFS’):[21]

    The Tribunal advised the Applicant’s former wife that it did not have jurisdiction to review her concerns about the information she was provided by Centrelink. The Tribunal only has jurisdiction to consider the decision under review.

    …

    The Tribunal advised the Applicant’s former wife that she could pursue a CDDA application as an avenue to seek compensation for the faulty information she perceives she received when navigating receipt of the Applicant’s lump sum payment.

    …

    Applications under the CDDA Scheme are discretionary, they are assessed on their individual merits, and a finding that a mistake has been made by an official does not automatically mean compensation is payable. The Tribunal advised the Applicant’s former wife that it had no jurisdiction in respect of perceived defective administration by the Department and had no jurisdiction over the CDDA scheme.

    [21] [2022] AATA 728 at [61], [63] and [65].

15. The Respondent contends that YFFS is analogous to the Applicant’s application.

16. The role of the Tribunal is to apply the relevant legislation to the Applicant’s application for carer payment. His concerns about the information given to him by Centrelink are not matters which the Tribunal has jurisdiction to review.  These concerns can be pursued by the Applicant via the scheme for Compensation for Detriment caused by Defective Administration (‘CDDA’) administered by the Department of Finance.

    CONCLUSION

17. As the Applicant did not satisfy the qualification requirements for carer payment in section 198 of the Act at the time of his claim, the Tribunal finds that the decision made by the Respondent to reject his claim was correct.

    decision

18. The Reviewable Decision, being the decision of a delegate of the Respondent made on 14 October 2021 to refuse the Applicant’s claim for carer payment is affirmed.

I certify that the preceding 42 (forty - two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk

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

Associate

Dated: 7 November 2022

Date(s) of hearing:	6 June 2022
Applicant:	In person
Solicitors for the Respondent:	Ms T Balakisnan, Services Australia